A head injury may be minor or traumatic -- easily perceived, such as bumps or open wounds, or completely invisible to naked eye. Head injuries also might accompanied by damage to the brain, such as memory loss, cognitive impairments, and emotional and behavioral changes that might significantly impair your standard of living.
If you have sustained a head injury as part of an accident, at some point you will want to consider how much you would be willing to accept to settle your claim with the at-fault party. Resolving your claim by way of a voluntary settlement may be more efficient and beneficial to you (and the defendant) because it saves both parties the time and cost of litigation. Since the injury can be severe, calculating damages for a head injury settlement can be difficult and is dependent on a variety of factors, which we'll examine here.
Types of Damages
There are two basic types of damages in head injury cases: special damages and general damages.
Special damages. Special damages (or economic losses) are damages for which money is a comparable substitute for what was lost. This is also known as the "out-of-pocket" loss rule. Special damages can include:
- Lost wages
- Lost earning capacity
- Medical expenses
- Funeral and burial expenses
- Property damages
General damages. General damages (or non-economic losses) are losses for which money is only a rough substitute. General damages include:
- Physical pain and suffering
- Humiliation and embarrassment
- Shock and mental anguish
- Loss of reputation
- Loss of consortium
- Loss of society and companionship
- Emotional distress
Learn more about General Damages vs. Special Damages.
To calculate your damages for a head injury settlement, you should:
1. Calculate special damages. This is easy to do for medical expenses and lost wages, but more difficult for future wages or lost earning capacity. It is a good idea to keep detailed records of your injuries and every doctor or physical therapist visit, as well as all medication that you take as a result of the injury.
2. Calculate general damages. Often, general damages equal 1.5 to 5 times special damages, depending upon the severity of the injury.
3. Add special and general damages together. The sum of your special and general damages is the total value of your claim.
4. Adjust the value to reflect savings. Next, adjust the sum of the special and general damages down based upon the expenses you will not incur, as well as the risks that you will avoid, by not going to trial. The extent to which you will adjust the value of your claim will depend on a number of factors, such as whether or not the other party is clearly at fault.
5. Compare to recent jury verdicts. Finally, supplement your damage analysis with awards or settlements from other head injury cases in your jurisdiction. Almost everyone involved in head injury litigation -- including both plaintiff and defense counsel, as well as the insurance adjuster or representative-- do so, so you should too. To do this, consult databases of past jury verdicts. Usually a combination of a Westlaw or Lexis search, along with some other book or online resource at your local law library will be sufficient.
Additional Factors That Can Influence Calculation
There are many other factors that can affect the value of your head injury settlement. Other factors to consider:
- Liability. Cases where liability is clearly established will lead to a higher settlement value than cases where liability is in dispute.
- Multiple tortfeasors. Where there are multiple tortfeasors -- or individuals who commit the act that causes the injury -- and each is represented by a different insurance company, there may be an issue as to how much each tortfeasor should pay.
- Characteristics of the plaintiff. The plaintiff’s own characteristics can influence the value of the settlement. For example, the plaintiff’s age, occupation, likeability, and prior medical history will probably affect the settlement value.
- Where the case will be tried. Some venues are more conservative than others and have a tendency to award lower damage awards than juries in more populated, urban communities. Venue, therefore, will affect the value of your settlement, since insurance adjusters always keep an eye on what could or might happen if he case goes to trial.
- Egregious conduct by the defendant. Punitive damages are designed to punish the defendant for particularly culpable and egregious conduct. Most likely, you will not add punitive damages to your settlement value, but will instead use the potential for punitive damages as leverage to lessen the degree of adjustment to the value of your special and general damages.
- Mitigating Damages. Damages must be mitigated, or reduced, by the plaintiff if doing so is reasonably possible. For example, if you decided not to seek treatment after your accident and, as a result, your medical expenses are now higher because your injuries are more difficult to treat, the insurance company might reduce the value of your settlement to reflect your failure to mitigate.