Massachusetts is a comparative negligence state. This means in order to succeed the other party must be at least 51% at fault. If you are injured in an accident that is your own fault you most likely will not be able to make a case for personal injury.
What is liability?
So the first thing to do is determine whose is at fault in the accident. If you are the passenger in a car and the driver of your car and the driver of the other car share fault you most likely can bring a claim against both drivers. Generally liability will be pretty clear if the person hits you from behind. In other circumstances if the police issue a citation to other driver it is also an indicator of fault. Always call the police and get a police report this can help determine fault.
What are my damages?
If you are pretty sure the other driver is at least 51% at fault we must determine whether or not you have sufficient damages to initiate a motor vehicle claim. In Massachusetts to bring a claim for personal injury related to a car accident you must show “reasonable and necessary” medical bills or expenses in excess of $2000.00.
This law is described in MGL c. 231, § 6D as follows:
In any action of tort brought as a result of bodily injury, sickness or disease, arising out of the ownership, operation, maintenance or use of a motor vehicle within this commonwealth by the defendant, a plaintiff may recover damages for pain and suffering, including mental suffering associated with such injury, sickness or disease, only if the reasonable and necessary expenses incurred in treating such injury, sickness or disease for necessary medical, surgical, x-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral expenses are determined to be in excess of [$ 2,000] unless such injury, sickness or disease
1. causes death, or
2. consists in whole or in part of the loss of a body member, or
3. consists in whole or in part of permanent and serious disfigurement, or
4. results in such loss of sight or hearing
5. consists of a fracture.
So if you been in an accident and determined the other driver was at fault, went to the hospital and were treated, your medical bills still must be over $2000.00. in order to bring a claim. In general if you have soft tissue injuries your trip to the ER will most not be enough to make tort or $2000.
Soft tissue injuries means injuries involving supporting, non-bony parts of the body. Such parts can include muscles and tendons. Ligaments are considered soft tissue as well. Soft tissue injuries are quite common in car accidents. Often, they are present in the form of tears, sprains, strains, and general soreness.
It is very important when leaving the hospital to ask for a referral to get more treatment. You can get a referral from the ER doctor or your Primary Care Doctor. This additional treatment will usually be in the form of physical therapy or a chiropractor. It is very important to get a referral first and then go rather than seeking treatment on your own. Insurance adjusters love denying payment for medical bills because the injured party sought treatment without going to their PCP first.
