Personal injury cases are civil actions, not criminal. The person or company liable for causing the injuries isn't found "guilty" or put in jail for their negligence. Instead, injured victims get justice by receiving compensation from the liable party. This compensation comes in the form of personal injury settlements and court judgments.
The financial and personal losses suffered by accident victims are collectively known as compensatory damages. They are divided into two main categories: Special and General damages. They are designed to return a victim to the position they were in prior to the injury (also known as making the victim "whole").
The most common accidents resulting in these damages are motor vehicle collisions and slip and falls. Other causes include work accidents, dog attacks, defective products, medical errors, and related injury-accidents.
These are monetary losses directly related to the accident and injury, which are easily documented and calculated. Personal injury attorneys and insurance claim adjusters often refer to special damages simply as "specials." They include four main categories.
1. Medical Costs
This includes reimbursement for the costs of all your medical treatment, starting immediately after the accident, continuing to the present day and when applicable, into the future. You document medical costs with bills from all your treatment providers, including the ambulance, hospital or clinic, doctors, chiropractors, etc.
This also includes lab tests, x-rays, MRIs, CT scans, and any other tests and exams. Basically, your medical costs include all bills in any way related to your treatment and recovery.
2. Lost Income
This includes all wages and other earnings lost as a result of the accident, starting from the day of your injury, through the present day and continuing into the future.
Lost income can be verified with a letter from your employer detailing your normal pay rate, the hours you lost, and the total amount of compensation you lost by not being able to work due to your injury.
3. Out-of-pocket Expenses
These include all other costs related to the accident and your injury, such as prescription and over-the-counter medications, medical aids like crutches and slings, prorated amounts for gasoline and parking fees required when traveling to medical appointments, payment for a rental car, and any other costs you would not have if you weren't injured.
Keep receipts for any purchases related to your injury and treatment, starting from the date of the accident. You can also estimate future out-of-pocket expenses, if applicable.
4. Personal Property Damage
This includes any monetary losses for personal items that were damaged in the accident. In a car accident, this would include the cost of repairs to your vehicle, or if your vehicle was totaled, an amount representing its fair market value.
This also includes reimbursement for any personal property damaged or destroyed during the accident, such as a laptop, cell phone, jewelry, or other items. Gather receipts or cost estimates for each damaged item.
Proving these losses is usually just a matter of gathering bills, receipts, and other documentation showing the actual costs you incurred due to the injury. To calculate the total amount of your specials, simply take all of the costs assigned to each of the special damage categories and add them together.
You can't calculate general damages simply by adding up bills or receipts. Furthermore, these damages are not always awarded in settlements and court decisions. Determining the value of general damages is subjective and open to interpretation. Let's discuss the most common forms...
Pain and Suffering
This includes the real pain and severe discomfort endured at the time of the accident, and any future suffering caused by the injury and treatment. Pain and suffering depends on the type and duration of the injury. The more pain in the present and future, the higher the compensation.
No two individuals will experience the pain of an injury the same way. Factors affecting pain and suffering compensation include present and future surgeries, the types of treatment and medication you're prescribed, and the need for intense future recovery.
This includes any psychological distress and emotional disturbance caused by the accident, such as anxiety, depression, fear, shock, nightmares, insomnia, etc.
This often requires evidence from psychologists or psychiatrists. A mental health professional's written narrative, including a diagnosis and prognosis, will show the seriousness of your emotional distress.
Loss of Enjoyment
This is your loss of present and future enjoyment of everyday activities, including hobbies, daily exercise, the company of friends, and other recreational pursuits. Compensation for loss of enjoyment depends on the value you can place on activities you're unable to enjoy now and in the future.
It will take some effort to convey to the adjuster just how much your life has been negatively affected by your injuries. Use emotional language and detailed, heartfelt descriptions of your life before and after the accident to convey your loss.
Loss of Consortium
This describes the loss of intimacy or sexual companionship with a spouse or significant other caused by a debilitating injury. It can include present and future sexual disability, as well as the pain of divorce (if caused by the strain the injury put on the relationship).
Claiming loss of consortium may require medical proof of sexual disability. If you're representing yourself, negotiating this issue can be uncomfortable. Convincing the insurance company may take a written statement from your spouse including intimate details of your sex life.
Recklessness and Gross Negligence
These are also known as punitive damages. They are awarded by a court as punishment for the malicious or egregious behavior of the liable party. Punitive damages also warn others of the consequences of bad behavior. They often depend on the injured victim's ability to prove the egregious behavior of the at-fault party.
Proving general damages is more difficult than proving specials. Simply adding up numbers doesn't apply since compensation here is based on subjective measures, rather than hard proof. A common way of coming up with a number is the multiple method. Although basic, it does give an approximate starting point to begin negotiations.
One of the best ways to come up with an appropriate demand is to research jury verdicts for similar personal injury cases in your city and county. You can find this information through websites like VerdictSearch.com and JVRA.com.
You can also research jury verdicts at your County Clerk's office. Personal injury case files are public records and can be viewed for free. Look for cases with similar fact patterns as yours. Then look at the jury awards and how the amount is broken down. This method will give you a much better idea of what's an appropriate amount to demand for compensation.
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