When you're injured in an accident that was someone else's fault, you might want to bring an injury case against them (either by filing a claim against their insurance, or by filing a personal injury lawsuit. In either situation, the value of your injury case will be driven by the nature and extent of your injury-related losses ("damages" in the language of the law). This article explains the possibilities.
What Are "Damages" in a Personal Injury Case?
In the context of a personal injury case, "damages" is a term that includes all of the injured person's losses resulting from the underlying accident. The idea is that the claimant's damages are captured by an appropriate dollar figure, in the form of an out-of-court settlement or a court award after a trial. Let's look at a hypothetical car accident case to get a general sense of what this means.
Clay has been involved in a serious car accident caused by a drunk driver who crossed the center line and struck Clay's vehicle head-on. Although the airbags deployed, Clay still suffered several broken bones, a ruptured spleen, and a closed head injury.
Clay received extensive medical treatment—including multiple surgeries, hospitalizations, physical therapy, and psychiatric care. He hasn't been able to return to work for several months. Clay has also experienced severe pain, emotional trauma, and depression.
Clay has been told that if he sues the other driver (Dwayne), Dwayne's car insurance company will defend the claim and will likely offer Clay a settlement to compensate for both "general" and "special" damages. What does this mean for Clay, and what can he expect if he decides to pursue the lawsuit?
What Are "General" and "Special" Damages in a Personal Injury Claim?
General damages (also called "non-economic damages") are losses that can't usually be computed with any amount of mathematical certainty. They're more subjective from person to person. This category of damages typically includes:
- pain and suffering
- inability to sleep
- anxiety and fear
- irritability
- emotional trauma, and
- the negative effects of your injuries and medical treatment on your daily life, including the loss of enjoyment from activities and events that you're temporarily or permanently unable to do.
In contrast, special damages (also called "economic damages") are those that usually can be calculated with a fair amount of precision. These include:
- medical bills
- property damage
- the cost of "replacement services" for housework and other chores you're unable to do, and
- lost wages and other financial losses related to the accident and resulting injuries, and
- the effect of the injuries on the claimant's ability to earn a living in the future, including "loss of earning capacity."
How Much Can I Get in a Personal Injury Case?
There are far too many variables at play to predict the value of a personal injury case, without knowing a whole host of details. But there are key factors that carry the most weight. Generally speaking, the amount of compensation you can receive will be determined by:
- the clarity of the fault picture (was the defendant clearly liable for the underlying accident?)
- the availability of money to pay any settlement or court award (usually this means there's ample insurance coverage)
- how well you can document your economic losses (special damages), and
- how convincingly you can depict the nature and extent of your non-economic losses (general damages).
Learn more about figuring out how much a personal injury claim is worth.
Since this article focuses on damages, let's take a closer look at those last two factors listed above.
Proving "Special" Damages in a Personal Injury Case
In presenting your case to the at-fault party's insurance company, you'll need to support your claimed "special" damages with:
- copies of your medical bills
- documentation of your property damage, and
- records showing the time you missed at work and the resulting income you have lost.
You'll also need to have your doctor(s) certify that your injuries have prevented you from working for a defined period.
How Do I Prove Future Lost Income or Reduced Earning Capacity?
Claimed damages like these are more difficult to prove because the injured person typically experiences some degree of recovery over time, which will eventually allow them to return to work on either a part-time or full-time basis. This kind of middle ground makes proving future lost earnings (or "loss of earning capacity") something of a challenge. Your attorney will likely need to hire an expert witness or two, who can examine the evidence and offer an opinion showing:
- the impact of the claimant's injuries on their ability to work (either at their former job, or in other potential positions) now and in the future, and
- if the claimant is unable to work at all (because of permanent disability, for example), the length of time the claimant can be reasonably expected to have continued working.
An award of future lost earnings must be reduced to present value, since a dollar earned today is worth more than a dollar earned in the future. And present value reductions are often offset by showing evidence of likely earnings increases that could expected over time. Here again is where financial expert witnesses will be needed to offer testimony on these and other factors. If your injury lawsuit goes to trial, the defendant is likely to counter your expert's opinion with evidence from experts of their own.
What Are "Replacement Services" in an Injury Claim?
With inability to do housework and similar "replacement services" damages, you'll probably need to demonstrate the reasonable value of the services you would have provided to your household if the injury hadn't occurred. In most cases, this can best be proven by evidence of the going rates in your community for things such as lawn care, house cleaning, and other "chores."
Proving "General Damages" in a Personal Injury Case
On the other side of the coin, your ability to obtain a favorable settlement for "general" damages will require you to convince the insurance company that your claimed pain, suffering, emotional trauma, and other more subjective damages are not just real, but also significant.
In many cases, these claimed conditions can be confirmed by treating doctors and other health professionals who have seen the effects of the accident on you and your daily activities. For example, these witnesses can testify to the pain associated with your fractures and subsequent treatment; your irritability, sleeplessness, and depression; and your overall lack of enjoyment of your former hobbies and social activities.
Proving "Pain and Suffering" in a Personal Injury Case
In cases of severe physical and psychological injuries, an experienced personal injury attorney will sometimes commission the making of a "day in the life" film that shows exactly how the accident and injuries affect the claimant's life. These films are costly to produce but are powerful tools that can drastically increase the settlement value of a personal injury case.
A daily journal kept by the claimant can also serve as strong documentary evidence in support of a "pain and suffering" claim, providing a detailed record of the impact of the injuries on the claimant's daily life.
When the insurance company receives compelling, documented support for your pain and suffering, it will be inclined to offer a more favorable settlement, in part because the insurer knows that if the case goes to trial, the jury is going to be presented with a convincing and sympathetic picture of your losses.
How Is Pain and Suffering Calculated in an Injury Case?
Many insurance adjusters and personal injury lawyers use a formula, called the "multiplier method" to calculate the value of subjective harm like pain and suffering. The formula involves adding up your accident-related medical bills and then multiplying the total by a number, which usually ranges from 1.5 to 5.
The value of the multiplier depends on many factors, including the severity and permanence of the injuries, the impact of the injuries on your daily life, and the other party's culpability. In Clay's case from the hypothetical above, the fact that the other driver was drunk at the time of the accident will weigh heavily in favor of a high multiplier along with the severity of his injuries.
What If I'm Unable to Sleep Because of My Injuries?
On the less serious end of the spectrum, the physical discomfort of your injuries could lead to trouble sleeping. The worry created by your accident and the uncertainty of your injury claim might also lead to disruptions in your sleep, resulting in fatigue and trouble concentrating.
But sometimes, sleep problems are indicative of something more serious, such as a concussion or traumatic brain injury. Memory, personality, concentration and emotional state may be adversely affected by head injuries, and trouble sleeping might just be one component of this kind of issue.
Diagnostic tests, like MRI and CT scans, can help determine whether you've sustained a brain injury as a result of your accident. And keeping a journal in which you record the specifics of your sleep problems (and their impact on your life) can be a powerful tool for illustrating this variety of general damages.
What Is "Loss of Consortium" in a Personal Injury Case?
In the language of the law, "consortium" usually refers to most aspects and benefits of the relationship between spouses and partners—everything from help around the house to emotional support and physical intimacy. And since these aspects of a relationship can be impacted by an accident and resulting injuries, "loss of consortium" can be part of a personal injury case. But it's not usually considered a category of the injured person's damages. Instead, the affected spouse or partner typically brings a "loss of consortium" claim.
What Is the "Duty to Mitigate Damages" in a Personal Injury Case?
The defendant in a personal injury case can point a finger back at the personal injury claimant and say that they failed to keep the negative effects of the accident in check. This obligation is often called the "duty to mitigate" damages, meaning the injured person must take reasonable steps to minimize (or "mitigate") their losses, including medical bills, lost income, and other consequences of the accident and injuries.
But what are "reasonable steps" in this context? It usually means you must do what a reasonable person under the same circumstances would do, taking all relevant information into consideration. For instance, if you injure your knee, you're not required to seek medical treatment from the world’s most renowned orthopedist on the other side of the globe; you would, however, be reasonably expected to visit a local, board-certified orthopedist shortly after sustaining your injury, if your physician recommends that action.
The duty to mitigate damages simply means you have to do what you can, within reason, to keep your damages at a minimum. Learn more about what to do after an accident or injury.
Are There Limits on Damages in Personal Injury Cases?
Some states have passed laws that place a limit or "cap" on damages in certain kinds of personal injury cases. Most of these caps apply to medical malpractice lawsuits only, and it's typically only non-economic (general) damages that are subject to the cap. So, in states that have these caps, even when an injured patient wins their case in court, the amount they can collect for "pain and suffering" and other non-economic damages is limited by state law. Learn more about medical malpractice damages caps.
Very few states place a limit on non-economic damages in personal injury cases in general (Maryland is one). And there are no states that cap economic losses (special damages) in personal injury cases.
Do I Need a Personal Injury Lawyer?
If your case involves serious injuries and pretty clear liability on the part of someone else, it probably makes sense to discuss your situation with an experienced legal professional. The right lawyer will:
- help you figure out how much you can expect from your personal injury case
- explain your options, from getting an injury-related insurance settlement to taking your case to court
- take charge of gathering all the right evidence you need to prove your claim, and
- will go to bat for you in negotiating a fair settlement, or presenting your case in court.
Learn more about how to choose a good personal injury lawyer.