When a potential client asks “do I have a case?” there are multiple aspects to that question that a personal injury attorney will consider. Two of the main issues are liability and damages. In other words, who is at fault and how extensively was the potential client affected by the defendant’s conduct. A valid personal injury claim does not rest solely on the extent of physical injuries. A person can be affected in many ways by the negligent acts of others. Below are some of the more common damages sought in a personal injury suit.
Medical Care Expenses
Almost all damages awarded for personal injuries include an amount for reasonable and necessary medical care expenses incurred in the past as well as medical care expenses that, in all reasonable probability, will be incurred in the future. Recoverable medical expenses are limited to amounts actually paid or incurred by or on behalf of the claimant.
Because an injury can have profound effects on an individual’s ability to perform work or sustain employment, damages may be awarded for lost income in the past as well the income the plaintiff would have made in the future, were it not for the accident, which is termed “loss of earning capacity.” Loss of earning capacity is generally more difficult to prove than lost income, not only because it hasn’t happened yet, but because the court is generally asked to project how the injured worker’s entire future career would have unfolded had the accident not occurred (i.e. promotions, raises, increased experience and skill, etc.).
Pain and Suffering
Compensation may also be awarded for any pain and suffering experienced during the accident and its aftermath. This includes not only physical pain and suffering, but mental pain and suffering as well. Physical pain and suffering is the pain and discomfort endured as a result of the actual physical injuries. Mental pain and suffering is a by-product of those bodily injuries and includes things like mental anguish, depression, anxiety, fear, humiliation, sexual dysfunction, and loss of sleep. Severe mental pain and suffering is often categorized as Post-Traumatic Stress Disorder (PTSD). Pain and suffering includes that experienced by the plaintiff in the past as well as the pain and suffering that, in reasonable probability, he will experience in the future.
Disfigurement damages can be awarded for the plaintiff’s embarrassment and need to conceal her disfigured body parts. The term “disfigurement” refers to impairment or injury to the beauty, symmetry, or appearance of a person. Disfigurement commonly manifests in the form of scars, burns, or amputations. However, it may also include contorted limbs or other deformities. These damages are measured from the date of the causal injury to when the disfigurement is expected to end, if ever.
If an accident has caused certain activities to become more difficult or impossible to perform, a plaintiff can recover damages for past and future physical impairment. This category of damages is abstractly defined as the “loss of enjoyment of life.” The activities which now cause the plaintiff difficulty can be related to sports, hobbies, employment, or general life skills. Proof of egregious injuries is not necessarily required to prove impairment.
Loss of Consortium
Although loss of consortium is a type of damages, it is also referred to as a cause of action because it is the primary type of damages in a derivative claim filed by the spouse or child of an injured person. Loss of consortium is based on the loss of love, affection, companionship, emotional support, and care that can occur when a family member is injured. Loss of consortium requires that the injured claimant have a physical injury; the injured claimant’s mental anguish is not sufficient.
Beyond the economic and non-economic damages described above, exemplary damages may be recovered if the plaintiff can prove the defendant’s aggravated conduct caused his injury. Aggravated conduct includes gross negligence, malice, or fraud. Exemplary damages are typically awarded as an example, penalty, or as a form of punishment for especially egregious conduct.