In legal terms, damage is defined as any losses, both physical and mental/emotional, that a person incurs as a result of an injury to themselves, their property, their mental state, or their reputation. Personal injury damages are the total amount the defendant is liable to pay to the plaintiff to compensate for the damage that they have caused.
The total injuries and losses that you incur during a personal injury incident are defined as "damages." In order to calculate personal injury damages, you must consider the cost of your injuries, current loss, and potential future losses.
When considering damages, most individuals only include tangible injury and loss. However, mental damages, pain, and suffering are all considered potential damages as well.
In general, there are two types of damages:
Pain and suffering fall under the category of general damages. General damages are covered by the negligence or intentional party who caused the plaintiff’s injuries.
You must provide evidence to support any claim for damages from injuries or medical bills. Without tangible evidence, there is no proof of the actual monetary loss that you endured because of your personal injury.
Injured parties commonly provide independent medical examinations and reports as evidence of their injuries. Independent medical examinations are conducted by healthcare professionals that are not the injured party's primary healthcare provider. This includes, but is not limited to, emergency room healthcare professionals, hospital professionals, emergency medical technicians, specialists, surgeons, or secondhand examination from a healthcare provider.
By providing an independent medical report, you minimize the opportunity for the defense to challenge the report on the basis of bias. If your only medical reports are from your primary physician, the defense will likely argue that the standing relationship between you and your doctor creates a bias in your favor. It is okay to include documentation provided by your primary physician, but a second opinion is also necessary.
Independent healthcare providers will conduct independent medical examinations, commonly known as IMEs. In some cases, an IME is required to open a personal injury claim. An IME establishes that sufficient injuries did occur and connects those injuries to the incident by ruling out any outlying factors such as pre-existing conditions.
Another common defense to a personal injury case is that the plaintiff failed to mitigate their injuries. To mitigate injury means taking precautionary steps to ensure that the injury will not worsen. As a plaintiff, you have a duty to mitigate your injury along with any further damages involved with your injury. Failure to do so may delegitimize your claim to compensation for damages.
Essentially, mitigating injury and damages translates to acting in a manner that is expected of anyone who has suffered from an injury: seeking proper medical help, referring to professionals, fixing or replacing damaged property, etc. The injured party is expected to act "in good faith and due diligence," meaning they make a noticeable effort to mitigate injuries in a timely manner. Waiting to see a doctor, waiting to find a new job, not repairing your car damages, etc. are all reasons the defense might argue you did not mitigate damages.
Besides medical costs, there are other tangible damages that are easy to recognize. Common non-medical damages include lost wages and damages to property. In order to collect repayment for damaged property, you will need to provide receipts for repair costs, professional estimates for replacement costs, and calculated estimates for lost wages based on your average salary level.
Depending on the severity of your injuries, you may also be entitled to compensation for the mental strain, pain, and suffering that you endured because of your injury. Because these damages are subjective, they are more difficult to determine. A personal injury attorney will be able to find the necessary parties to help calculate a fair amount based on your case.
Any medical costs related to your injury fall under medical expense damages. This includes bills from doctors, hospitals, emergency rooms, ambulances, nursing services, rehabilitation, and pharmaceutical costs. Examinations are usually not included in the list of medical expense damages. The amount of compensation awarded is based on the receipts provided by the injured person. These personal injury damages are included in their own category.
Lost wages include the total expected loss of income the injured person suffers because they are unable to work due to the injury. Even if you are unemployed, you may be entitled to lost wages if you can prove that you could have been earning during your recovery period. These damages are included in their own category.
These damages include the actual physical pain and suffering caused by the injury. The severity of the injury, amount of physical suffering, expected future physical suffering, and the expended span of pain will be taken into consideration in order to determine compensation. These damages are included in loss and suffering.
Also referred to as emotional distress, these damages are not easily discernible. Compensation is based on the distress caused during or after the injury. Terror, nervousness, anxiousness, loss of dignity, grief, shock, embarrassment, and mental instability all fall under mental suffering damages. These damages are included in pain and suffering.
Any private property that is damaged because of an incident can be compensated by court awarded damages. In order to receive compensation for property damage, you must provide tangible proof that the damages occurred because of the incident and receipts of any associated costs with the damages. These damages are included in their own category.
Disfigurement occurs when an injury causes a person to be permanently deformed. This can include scars, burns, lashes, and physical deformities. There isn't typically a monetary cost attached to disfigurement, so the injured person can file for damages based on mental suffering or physical pain.
Future medical expenses can include any expected future medical costs related to the injury. Common future medical costs include rehabilitation, surgery, checkups, and extended hospital stays. A list of these estimated future expenses must be provided by a healthcare professional, and not just assumed by the plaintiff's representation. These damages are included in medical expenses.
In cases of severe injury, it may be necessary to hire outside help to assist with daily activities the injured person can no longer complete by themselves. These services could last for a brief period of time or, depending on the injury, be necessary for the remainder of the injured person's life. These damages are included in medical expenses.
Married life can be affected by a major injury. The uninjured spouse usually files a loss of consortium claim on the basis of lost affection, companionship, social skills, help and assistance, and sexual relationship with their spouse. The damages of these claims are based on both spouses' prior life expectancies, marriage stability previous to the incident, how much care and assistance was bequeathed upon the uninjured spouse, and the total loss of benefits of the couples married life. These personal injury damages are included in loss and suffering.
The injured person is entitled to compensation for any expected lost enjoyment of life they endure due to their injury. This is a relatively broad list of damages that includes such costs as increased difficulty of day-to-day tasks, the ability to participate in normal activities, etc. These damages are included in their own category.
These damages occur in wrongful death cases. Loss of society also referred to as loss of companionship, is entitled to the family of the deceased. These costs include loss of comfort, companionship, and love suffered because of the family's loss. The amount of compensation awarded is usually based on the level of relationship the individual filing claim held with the deceased. These damages are included in loss and suffering.
These personal injury damages include any expected future lost wages the injured person will suffer due to their injury. These damages are awarded for injuries that affect the injured person's ability to earn wages in their field or profession because of impairments caused directly by the injury. In order to determine appropriate compensation, the injured person's age, life expectancy, current earnings, profession, skills, and experience will all be considered. These damages are included in their own category.
These damages are awarded to an injured party who faces permanent disability because of their injury. This can include permanently barred participation from work, day-to-day tasks, enjoyed activities, and loss of companionship. Medical testimony must be provided to prove that the injury will result in permanent disability. These damages are included in both medical expenses and loss and suffering. There is an array of other, more specific types of damages that are case-specific. Your personal injury attorney will be able to recognize any case-specific damages not included on this list.
There are statutory laws in each state that limit the amount of non-economic damages that can be allotted to an injured person. These caps are established in order to protect the economy, which can actually be affected by overzealous damages awards, as well as limit the cost of conducting and/or operating a business.
When a high damage cost is placed on defendants (businesses, professionals, and individuals), the actual payout falls on the defendant's insurer. Placing multiple high payouts on an insurance provider can start a chain reaction of increased costs that affect the entire economy. Though damages caps seem unfair, they protect individuals from inflated insurance prices. These caps were also established to protect the court system from being flooded with lawsuits. The caps discourage people from filing weak suits with the intention of winning the "lawsuit lottery" (filing a lawsuit with the sole intention of getting lucky and making money on a weak case). Cap limits differ by state. There is a federal cap of $250,00 for medical malpractice claims.
Determining economic personal injury damages is relatively straightforward, and most people believe that legal representation is not needed for this step in the process. However, proving economic damages with adequate tangible evidence in the arbitration or a courtroom is a more difficult task.
Without a well-formulated argument, it is easy to lose out on compensation for economic damages. When it comes to non-economic damages, personal injury lawyers are very helpful. Not only can a practicing attorney help you determine all non-economic damages that you have incurred from a personal injury, but they also know the necessary steps to proving these damages.
For more information, read our blog on compensatory damages and punitive damages.The personal injury team at TorHoerman Law knows the ins-and-outs of the rules and regulations surrounding personal injury damages. Let us help to ensure that you get full compensation for the damages you suffered a personal injury. Contact us with any questions or concerns, or for a free, no-obligation case consultation.
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