Every personal injury claim has several key ingredients:
- The wrongdoer must owe the injured party duty of care.
- The wrongdoer must have engaged in some kind of wrongful conduct (either negligent or intentional).
- The injured party must have suffered damages.
If any of the three elements is lacking, there is no viable case and no way to recover personal injury damages. Assuming the first two elements, duty and wrongdoing, what damages can be recovered in a personal injury case?
Damages tend to be generally classified as either economic or non-economic. The distinction has become increasingly important in states that limit recovery in tort claims. A tort claim is essentially a personal injury case, although there are tort claims that do not fall strictly into the layperson’s perspective of personal injury.
Many state legislatures have limited or capped damages in personal injury cases, and those caps generally apply to non-economic damages. Other states, by contrast, allow an injured party to recover the economic damages (that can be proven) without limit. Hence, making a distinction between the two can be vital in maximizing any personal injury claim.
Non-Economic Personal Injury Damages
Non-economic damages get, at times, a bad name. The classic element of non-economic damages is pain and suffering. Pain and suffering is, however, a much broader concept than physical pain. Many injuries do not result in great economic loss, but injuries can produce a lifetime of pain and suffering. This broad element can include the following:
- Physical pain. Some folks continue to experience physical pain for a lifetime following an injury.
- Emotional pain and distress. Chronic pain and disability frequently results in depression and anxiety over the inability to lead a former lifestyle.
- Loss of enjoyment of life and activities. We all have activities that form the basis for our enjoyment of life. Sports, going to the grocery store, and interacting with our spouse and family are all things over which we would suffer if we were suddenly deprived of the ability to do them due to a disability or chronic pain.
- Embarrassment. Imagine a young man or woman who has suffered disfiguring scarring in a motor vehicle collision. Perhaps the wound was stitched at very little expense, but now he/she will bear the scars for decades. Likewise the loss of a limb can lead to not only disability, but phantom pain, disfigurement and embarrassment.
In states that limit recovery for non-economic damages, the above categories may be capped or limited to a mere $250,000 in recovery. Some states only limit non-economic damages in certain types of cases; e.g. Missouri in medical malpractice cases. For others, the limits are across the full spectrum of personal injury cases and theories; e.g. Kansas.
Economic Personal Injury Damages
However, in those states limiting recovery for non-economic damages, most would allow unlimited recovery up to provable economic damages. Economic damages may include the following:
Past medical expenses
Many states (e.g. Missouri), have limited even the recovery of medical expenses to what is paid to eliminate the debt. Most health insurers, and certainly government programs such as Medicare and Medicaid, pay pennies on the dollar to hospitals and doctors to retire medical expenses. Hence, Medicare may pay $80,000 for a bill that the hospital originally billed as $200,000. In Missouri, only the amount paid is recoverable. In the not-too-distant past, injured persons were entitled to submit the entirety of any medical expense incurred. However, this is no longer the case.
Future medical expenses
Some injuries can require a lifetime of medical care. Someone who fractured a hip in a motor vehicle crash at age 40, may need 2-3 revisions of a total hip replacement in his/her expected life time. Such projections of future costs may be recovered, and can generally be submitted for the jury’s consideration at the actual billed cost for the care, not in consideration of what an insurer or government program might pay 20 years from the present.
Lost Income, Past and Future
When injuries require someone to miss time from employment, they can recover lost income. If a disability will prevent future employment or compromise the tasks and capabilities of someone in the future in a way that will reduce income, they can recover that too.
At times, the accident does not affect someone’s present occupation right away. But, due to injury, the range of future income opportunities has been compromised. Maybe the injured party loses his/her job and cannot find more work because of their injuries. Or, maybe the injuries progress to the point where continuing work at the present occupation is no longer practical. In such cases, economists and vocational experts project one’s future loss of earnings capacity. It may not happen, but the jury may consider the reasonable certainties of future lost opportunity.
Life Care Expenses
In cases of significant or catastrophic personal injury (e.g. paralysis or traumatic brain injury), there may be a host of expenses that one would not otherwise incur but for a significant compromise of physical or mental function. Wheelchairs, hand controls on automobiles, ramps, special showering or bathing aids, daily assistive care, can all mount up to millions of dollars as a consequence of catastrophic injury.
Contact a Personal Injury Attorney
While not an exhaustive list of potential personal injury elements, this is the typical range of damages that juries consider in a personal injury case. For more information about your injuries and damages and how laws in your state will affect your ability to present a case for full recovery, contact an attorney who has the experience and resources to fully present your case for personal injury.