Damages in Personal Injury Law

Money Compensation for a Personal Injury

When you bring a civil suit for a personal injury that you or a family member has suffered, your aim in doing this is to collect financial compensation or "damages." This is different from a criminal law case, in which the prosecutor works for the state and may want to send a defendant to jail to punish the defendant for breaking the law.

A civil lawsuit doesn't result in the defendant going to jail or losing his/her freedom. The penalty for a defendant who loses a civil suit and who is found liable is that he/she has to pay the financial cost of the damages caused to the plaintiff.

What Are Damages in a Personal Injury Case?

Damages in a personal injury case are compensation for a plaintiff that is intended to "make the plaintiff whole." Usually, it is stated that the purpose of damages is to, as much as possible, put the injured victim back into the position he or she would have been in if he had not suffered the injury as a result of the defendant's negligence or intentionally bad actions.

Of course, sometimes it is really hard to make the plaintiff whole, since the defendant cannot go back in time and undo or take away pain and suffering that have been endured. Financial compensation is the only option here, so the plaintiff is paid money to try to "make up" for the suffering.

Types of Damages

The types of damages that are available in a personal injury claim can vary slightly, depending on the situation, the injury to the victim and the laws of the state. In general, however, the different types of personal injury damages can be broken into a few different categories. These include the following:

1. Damages for the cost of medical bills arising from any and all injuries caused by the defendant.

If the plaintiff must undergo testing or treatment, or if the plaintiff must receive medical care of any type, such as hospital stays, nursing home stays, or physical therapy, the defendant must pay for the costs of the medical bills. This can become quite expensive, especially in cases in which a plaintiff has become permanently disabled and is in need of adaptive devices or lifelong nursing care. The medical portion of damages should include every expense that the plaintiff has had to pay out over the course of receiving treatment at the time when the case is settled or when the jury awards damages and should also factor in what the future costs will be to the plaintiff.

It is very important to note, however, that sometimes plaintiffs must turn some or all of this money over to their health insurer if the health insurer has been paying the bills prior to a settlement or damage award. Sometimes, a lien is actually placed on the expected value of a future damage award either by insurers or health care providers to ensure payment is made when the defendant pays out for these medical costs.

2. Damages for lost wages

Damages for lost wages or lost income are also required of the defendant. These damages should include payment for any work that a plaintiff had to miss because of the injury or because of treatment for the injury. If a plaintiff was able to take vacation days or sick time, he or she still should be compensated for the loss of those days. If a plaintiff has been made permanently unable to work due to the injury, then the lost wages that he or she would have made over the course of a lifetime may be required to be paid by a defendant. The same is true if a plaintiff has been disabled in some way that will reduce his or her future ability to earn, even if it hasn't taken away that ability entirely.

3. Damages for pain and suffering

This is among the most difficult thing to calculate, as it is almost impossible to put a price on the pain someone has endured. The tendency of juries to award large damages for pain and suffering, especially when it comes to highly visible or gruesome injuries, is one thing that makes insurance companies inclined to settle a case. When a case does settle, insurance companies will often employ techniques like a "pain multiplier" in order to try to arrive at a fair and reasonable number for pain and suffering damages. This involves multiplying actual financial losses (medical bills and lost wages) times a number that the insurer deems appropriate (usually, beetween 1 1/2 and 5).

4. Damages for emotional distress

Sometimes, an accident or injury has emotional ramifications on a plaintiff. This is especially true if the accident was especially upsetting or if the plaintiff watched someone he or she loved also become injured or killed in the accident. Emotional distress usually must be proven by psychiatric records, and things like a diagnosis of post traumatic stress disorder can add to the amount of compensation awarded for emotional distress.

5. Wrongful Death

Wrongful death lawsuits are brought by the family members of victims who have been killed as a result of an accident or injury caused through negligence or intentional bad acts. Wrongful death damages cover the lifetime of wages lost as a result of the victim's death. Funeral costs, among other expenses, are also included. A family member must have standing to bring a wrongful death action, though. Spouses are allowed to bring such an action in every state, and parents can bring an action on behalf of minor children. There are varying rules as to whether parents can sue for wrongful death for adult children, as well as regarding whether siblings, cousins, adult children or other more "distant" relatives can sue for wrongful death.

6. Loss of companionship/loss of consortium

This is an action brought by a family member of an individual who has been killed or who has been altered in a dramatic way by the accident or injury. For example, someone whose spouse was rendered brain damaged and unable to function at all might have a case for loss of companionship. This compensates the family member for the loss of the relationship of the victim. In some states, loss of consortium is actually even more specific than that and can be a case brought by a spouse if he or she loses the ability to have a sexual relationship with the victim as a result of the defendant's actions.

7. Punitive Damages

Punitive damages are not allowed in all cases or in all states, but when they are allowed, they are different from the other kinds of damages. These damages, although paid to the plaintiff, are not intended to make the plaintiff whole. Instead, their purpose is to punish the defendant for the wrongful behavior and to act as a deterrent for this sort of behavior. Normally, when punitive damages are allowed, they are limited to cases in which the defendant did something beyond just merely exhibiting a lack of care (negligence). For example, a driver who just made a negligent mistake and caused an accident might not be assessed punitive damages, but a drunk driver or a person engaging in reckless street racing might.

Economic vs. Non-Economic Damages

While the above categories of damages are the general types of damages awarded in personal injury claims, these categories of damages can also be more generally divided into two different kinds of damages: economic damages and non-economic damages.

Economic damages are those awarded as a direct result of actual financial loss. For instance, medical bills and lost wages are both economic damages because you can actually add up a dollar amount for the losses sustained by the plaintiff.

Non-economic damages are all of the other kinds of damages, the ones in for which you can't point to some specific financial cost to the plaintiff. Pain and suffering and emotional distress are non-economic damages. These damages are all much harder to put a price on and calculate.

Damage Caps

Understanding the difference between economic damages and non-economic damages is important because some states have instituted something called "damage caps" as part of efforts in tort reform. Damage caps are rules limiting non-economic damages. For example, California tort reform rules limit non-economic damages to $250,000, except in certain limited cases.

Tort reform efforts are usually lauded by those who wish to reform the tort system in order to provide more protection for doctors. Doctors who are at risk of being sued without damage caps have to buy more expensive medical malpractice insurance, and the belief is that by limiting damages, insurance costs will be lowered and the savings will be passed on to the consumer. Of course, the counter argument is that damage caps may make doctors less careful and also punish an innocent and injured plaintiff by not allowing him or her to get the full amount of compensation that is deserved.

When damage caps do exist, there are often exceptions in place for things like intentional torts, where the defendant acted intentionally to cause harm. There may also be exceptions to damage caps in wrongful death cases or in cases in which negligence was motivated by financial gain.

It is also important to note that even when damage caps are not instituted, there may be times when a jury's award of non-economic or punitive damages is so unreasonably high that it cannot be allowed to stand as it is. In such cases, the damage award may be reduced to a more reasonable level that is supported by the claim.

If you have been involved in a personal injury case, determining your appropriate compensation for damages becomes very important, as it can help you to assess whether to accept any settlement offers that might be made by the defendant or the defendant's insurer. It is always best to have help from a qualified and experienced personal injury attorney to evaluate your injuries, your claim and the strength of your case. Your lawyer can use expert training and knowledge of state laws and past verdicts to assist you in understanding just what your claim may be worth.

Next Steps

12. How to Value a Personal Injury Case
13. Tort Reform
14. Preparing a Strong Personal Injury Case

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