Damages in Your Personal Injury Case
An overview explanation of how losses are compensated in a personal injury claim.
In a civil lawsuit for personal injury, you collect financial compensation or "damages" from the at-fault party if your case is successful. In this article, we'll take a closer look at the concept of damages.
What Are Damages in a Personal Injury Case?
Damages in a personal injury case are intended to "make the plaintiff whole" after an injury. Of course, sometimes it is not possible to make the plaintiff whole, and it is difficult to put a dollar figure on things like pain and suffering, but the goal is to best put the injured person back into the position he or she would have been in if he had the injury not occurred.
Types of Damages
The types of damages that are available in a personal injury claim can vary depending on the type of case, the circumstances of the injury to the victim, and the laws of the state. In general, personal injury damages include the following:
1. Compensation for the cost of medical bills arising from 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, and should also factor in what the future costs will be to the plaintiff.
It is very important to note that sometimes plaintiffs must turn over some or all of this money to their health insurer if the health insurer has been paying the bills prior to a settlement or damage award. Sometimes, a medical 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. Lost wages
Compensation for lost wages or lost income is another aspect of a damages award in a personal injury case. This includes 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 the 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. Pain and suffering
The tendency of juries to award large damages for pain and suffering, especially when it comes to significant 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, between 1 1/2 and 5).
See this article on pain and suffering damages for more on how this type of compensation is calculated.
4. Emotional distress
Sometimes, an accident or injury has emotional ramifications on a plaintiff. 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 by someone else's negligence, or by an intentional bad act. 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 significant way by the accident or injury. The idea is to compensate the family member for the loss of the relationship of the victim. In some states, loss of consortium is actually very specific and can compensate a spouse if he or she loses the ability to have an intimate physical relationship with the injured person.
7. Punitive Damages
Punitive damages are not allowed in all cases or in all states, but when they are allowed, they are different from other kinds of damages discussed here. Punitive damages, although paid to the plaintiff, are not intended to make the plaintiff whole. Instead, their purpose is to punish the defendant for particularly egregious wrongful behavior and to act as a deterrent for this sort of behavior.
Economic vs. Non-Economic Damages
Categories of damages can also be more generally divided into two different kinds: 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, where you can't necessarily point to some specific financial cost to the plaintiff. Pain and suffering and emotional distress are non-economic damages.
Understanding the difference between economic damages and non-economic damages is important because some states have instituted "damage caps" as part of tort reform efforts. Damage caps typically limit non-economic damages, sometimes only in certain types of cases. For example, California limits non-economic damages (which includes pain and suffering) in medical malpractice cases.
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. For more on damage caps, see this page.