For many reasons, accidents may cause personal injuries that do not arise directly after the time of the incident. Increased energy or shock may mask pain, mental anguish may take time to understand, and physical injuries like back pain or reduced range of motion may develop and worsen over many months.[1]
After an accident occurs, the first steps are to call for help, later followed by filing police reports and insurance claims in all applicable situations. In order to protect one’s physical, financial, and legal wellbeing, it is important to carefully monitor injuries after an accident and seek medical attention as soon as unusual pain or other injury symptoms arise. Next, a claimant should consult a personal injury attorney to ensure full knowledge of all rights and pertinent rules or deadlines during the process of filing insurance claims and, if necessary, lawsuits. The attorney will assess the best method for recovering damages caused by the accident, including future expenses that the claimant may not yet fully understand.
Types of Damages
When filing a personal injury claim, claimants seek financial awards known as damages to compensate them for their injuries and losses. This includes all known past and future damages related to the accident, ranging from medical bills to pain and suffering. In addition to these compensatory damages, victims may also seek punitive damages to penalize the defendant for particularly egregious behavior, such as gross negligence.[2]
While past damages involve the straightforward process of adding up economic expenses and estimating the impact of noneconomic issues, suing for future damages often is a bit more complicated. These calculations attempt to capture all reasonably foreseeable loss due to the accident for the rest of the claimant’s life, without the benefit of the bills and personal experience that one has when determining past damages.[3] Insurance companies will provide some analysis, but it is still best to consult a personal injury attorney to ensure that the best estimate is provided of all damages, past and future.
Calculating Future Damages
Calculations for future damages depend on a wide variety of factors, including the tangible costs of surgeries, procedures, physical therapy, medications, etc. These calculations also factor in the less tangible effects of emotional distress or other forms of mental pain and suffering, which can significantly alter a claimant’s life moving forward.[4] Expert witnesses often play a vital role in establishing future damages. For example, if one’s accident results in a very serious back or spinal cord injury, medical professionals like orthopedists and neurologists may be consulted to help estimate the costs of all future medical care related to this injury. A personal injury attorney would also likely consider many aspects of the claimant’s life prior to the accident to attempt to ascertain the long-term negative effects on the accident victim’s personal and professional future. This step is especially important when the accident causes significant damage to the claimant’s ability to perform everyday tasks, such as working.
While it would be much simpler if a full understanding of damages could be determined immediately after an accident, the reality may be very different. Injuries can sometimes be delayed or completely misunderstood. Because of this uncertainty, it is extremely important for those involved in an accident to be aware of the necessary steps and acceptable timeline for filing a personal injury claim against the at-fault party.
Statutes of Limitations
A statute of limitations sometimes referred to as the prescription period,[5] sets a certain amount of time after which one cannot initiate litigation. These statutes vary by jurisdiction and can apply to both civil and criminal cases.[6] While some find statutes of limitations controversial or problematic, the main purpose is to protect potential defendants after a significant portion of time has passed from the original incident. Evidence may be lost, or witnesses may forget details over time, hypothetically making the trial unfair to implicated parties. The start of the actionable time period may begin the day of incident, the date of incident discovery, or the date of discovery if reasonable steps had been taken to learn of the issue. The start date and length of this time period depend on the jurisdiction and the specific statute in question. Statutes of limitations may also be found in written legislation or the unwritten precedents of common law.
According to Sec. 16.003 of the Civil Practice and Remedies Code, the state of Texas follows a two-year statute of limitations for personal injury claims, usually starting from the date of the accident.[7] This timeframe applies to most cases in this category, including car accidents, medical malpractice, product liability, etc. An extended four-year statute exists for personal injury cases involving fraud or broken contracts.[8] A few exceptions exist, such as asbestos-related injuries, trade secrets, and various forms of sexual misconduct or aggravated assault.[9]
If a lawsuit is not filed within the statute of limitations window, it is unlikely that the civil courts would still hear the case, severely limiting the chances of recovering damages. However, it is still possible for the court to grant an extension under special circumstances. For example, if a claimant was a minor at the time of the incident, the statute is tolled, or paused, until his or her 18th birthday, at which point the two-year timeframe begins.[10] Tolling may come from a contract, in which the involved parties agree to waive the statute for a certain amount of time prior to the original deadline.[11] Personal injury attorneys might also present reasons for tolling their cases to the courts, which will then decide whether or not this provision should be applied.[12] However, tolling does not prevent claimants from filing during the normal statute of limitations period should they prefer this option.[13] This provision exists to protect children who may not be mature enough to understand the full extent of their injuries or their legal rights. It is best to consult a personal injury attorney to see whether or not a special deadline may be applicable.
After a claim has been settled or tried, one should assume that the issue cannot be reopened without proof of egregious procedural wrongdoing or fraud.[14] It is important for claimants to seek an attorney’s advice within the statute of limitations to help estimate all future damages before committing to any final decisions in a lawsuit.
Undiagnosed and Delayed Injuries
Although injuries like burns, lacerations, and broken bones may be immediately apparent, various medical complications can have a delayed onset. Serious injuries may develop or worsen over many years. This can make attributing the cause of injury to the original event significantly more difficult for injured individuals and their medical teams. Further obscuring accident-related injuries, the stress and physiological excitement of the incident can potentially precipitate the bodily responses of adrenaline and endorphin rushes.[15] Within mere seconds of the stressor’s initial presence, the body may release these hormones, temporarily increasing strength and decreasing the ability to feel pain. While it is always best to file within the statute of limitations, there are some protections for accident victims facing extraordinary situations that prevent them from filing suits during the standard timeline. However, these exceptions are very rare and difficult to apply to personal injury cases.
Tolling the Timeline and the Discovery Rule
Just as the statute of limitations may be tolled until a minor comes of age, the timeline might also be tolled for inherently undiscoverable injuries. This is commonly referred to as the “discovery rule.” For example, if an employer does not provide an employee with proper personal protective equipment (PPE) against a toxin in the workplace, and the employee’s exposure to that toxin causes a cancer many years later, the statute of limitations may While this general category of “workplace accident” would normally follow a two-year statute of limitations from an exposure incident date, the undiscoverable nature of the injury may allow the claimant to sue many years later using the discovery rule. In the above example, the cancer would not have been detectable when the employee was exposed to the toxin.
The Supreme Court of Texas recently clarified its position on the discovery rule’s applicability to personal injury claims in the 2018 case Schlumberger Technology Corporation v. Pasko, 544 S.W.3d 830 (Tex. 2018).[17] In the original case, the employee Michael Pasco was severely burned by toxic fracking chemicals after a Schlumberger employee instructed him to clean a spill without providing Pasco with proper PPE. Months later, doctors diagnosed Pasco with squamous cell carcinoma cancer. Pasco did not name Schlumberger as a plaintiff within two years of the incident, arguing that the discovery rule should toll the statute of limitations until the date of his cancer diagnosis. While ultimately the worker did not adequately prove that the injury was undiscoverable at the time of the incident, the case allowed the Court to refine its stance.
The Court agreed that personal injury claims like Pasco’s qualified under the discovery rule but still held that the legal injury date should be used over the cancer discovery date. As described in Childs v. Haussecker, 974 S.W.2d 31 (Tex. 1998), “In most cases, a cause of action accrues when a wrongful act causes an injury, regardless of when the plaintiff learns of that injury or if all resulting damages have yet to occur.”[18] While the cancer was not known on the day of the incident, the injury more generally was known at that time. This position means that those attempting to use the discovery rule must prove that they did not know that they were injured in the first place. Pasco knew that he was burned, likely due to the wrongdoing of a Schlumberger employee. Therefore, the cancer is considered a resulting damage that had not yet occurred, but not an altogether undiscoverable injury. The cancer also did not qualify under the latent occupational disease rule, which Pasco’s attorneys originally cited, as this rule usually refers to diseases discovered many decades after exposure at work and without such a clear incident as Pasco’s.
As shown through the Schlumberger case, outside of the statute of limitations, it is extremely difficult to successfully initiate legal proceedings, even with exceptions like the discovery rule. Without a strong argument for extenuating circumstances, a court will likely refuse to hear the case. It is important to file suit as soon as possible to ensure that the deadline does not prevent a claim from being heard by the courts.
While situations like the Schlumberger case may sometimes appear unfair, they highlight the importance of analyzing every aspect of one’s injuries with attorneys and relevant experts as soon as possible. Even within the statute of limitations, there are no guarantees that a claim for future damages will be successful. Filing sooner rather than later is always better. Due to the many complexities of suing for future damages, it is always best to consult a personal injury attorney after an accident to review all options.
Written by:
Jenna Donatiello
Law Clerk
GUERRA LLP
875 East Ashby Pl, Suite 1200
San Antonio, Texas 78212
Phone: (210) 447-0500
Frank Guerra
Board Certified – Personal Injury Law
Texas Board of Legal Specialization
GUERRA LLP
875 East Ashby Pl, Suite 1200
San Antonio, Texas 78212
Phone: (210) 447-0500
Be sure to follow us on Instagram and Facebook to see more Guerra LLP news!
[1] https://www.reidphysicians.com/blog/why-pain-sustained-after-an-auto-accident-is-often-delayed
[2] https://www.injuryattorneyofdallas.com/what-are-future-damages-in-a-personal-injury-case/
[3] https://www.injuryattorneyofdallas.com/what-are-future-damages-in-a-personal-injury-case/
[4] https://www.nolo.com/legal-encyclopedia/what-pain-suffering-personal-injury-case.html
[5] https://www.globalnegotiator.com/international-trade/dictionary/prescription-period/
[6] https://www.law.cornell.edu/wex/statute_of_limitations
[7] https://statutes.capitol.texas.gov/Docs/CP/htm/CP.16.htm
[8] https://www.hg.org/texas-personal-injury-law.html
[9] https://statutes.capitol.texas.gov/Docs/CP/htm/CP.16.htm
[10] https://www.simmonsandfletcher.com/personal-injury/statute‑limitations-personal-injury-case/#:~:text=The%20statute%20of%20limitations%20on%20a%20personal%20injury%20case%20in,is%20regarding%20certain%20medical%20malpractice%2C
[11] https://www.cooperscully.com/uploads/file/Navigating%20the%20Statute%20of%20Limitations%20in%20Texas.pdf
[12] https://guerrallp.com/what-is-a-statute-of-limitations/
[13] https://www.anderson-cummings.com/blog/covid-19-and-texas-statute-of-limitations.html
[14] https://www.injuryattorneyofdallas.com/can-a-personal-injury-case-ever-be-reopened/
[15] https://www.medicalnewstoday.com/articles/322490
[16] https://www.houstoninjurylawyer.com/texas-supreme-court-clarifies-discovery-rule-in-personal-injury‑cases/#:~:text=According%20to%20the%20court’s%20ruling,compensation%20as%20soon%20as%20possible.
[17] https://scholar.google.com/scholar_case?case=4034496496393937255&q=Schlumberger+Technology+Corp.+v.+Pasko+&hl=en&as_sdt=4,44
[18] https://scholar.google.com/scholar_case?case=4239497248892452278&q=Schlumberger+Technology+Corp.+v.+Pasko+&hl=en&as_sdt=4,44
