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Get more money for your personal injury claim by knowing what kind of damages to include in your demand for compensation.
Personal injury compensation comes in two forms: a settlement after negotiating an insurance claim, or a court award after winning a lawsuit.
The financial and personal losses suffered by accident victims are known as compensatory damages.
There are two main categories of compensatory damages: Special and General damages.
Legal actions for personal injuries are meant to return a victim to the financial position they were in before they were hurt. In legal terms, injury compensation is intended to make the victim “whole.”
Most personal injury claims arise from motor vehicle accidents and slip and falls. Other types of injury claims include work injuries, dog attacks, defective products, medical malpractice, and other injury-accidents.
Special Damages: Hard Costs
Special damages are economic losses directly related to the injury that can be documented and calculated. Injury attorneys and claim adjusters often refer to special damages simply as “specials.”
Proving special damages is usually a matter of gathering bills, receipts, and other documentation showing the actual costs you incurred due to the injury.
Add up the costs of your medical bills, lost income, out-of-pocket expenses, and personal property losses to calculate the total amount of your special damages.
There are four general categories of special damages:
Your medical bills and records are an extremely important part of your injury claim. Request copies of all your medical bills and records to document your costs. You’ll need the total amount billed for your treatment, not just your co-pay.
Be sure to request copies of every one of your medical bills, even if healthcare insurance or workers’ compensation covered them. Medicare, Medicaid, workers’ comp, and most health insurance companies have the right to put a medical lien against your settlement to recover what they paid on your behalf.
Document your medical expenses for:
- Ambulance services
- Hospital and emergency room charges
- Hospital and emergency room physician fees
- Chiropractic treatment
- Tests like lab work, X-rays, CT scans and more
- Physician fees for interpreting test results
- Costs for physical therapy or rehab
You will seek 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.
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 for as long as you may be unable to work.
Verify lost income 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.
Your employer can also verify lost opportunities for overtime, as well as any vacation time or sick leave you had to use because of your injury.
Your out-of-pocket expenses include all other costs related to the accident and your injury. Related expenses can include:
- Prescription and over-the-counter medications
- Medical aids like wheelchairs, crutches, slings, bandages, etc.
- Gasoline and parking fees when traveling to medical appointments
- Payment for a rental car
- 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.
Personal Property Damage
If you are in a car accident, you can file a property damage claim for the cost of repairs to your vehicle, or if your vehicle was totaled, an amount representing its fair market value. You may be able to claim the cost of a rental vehicle while yours was in the shop.
No matter the circumstances of your injury, you also have the right to seek reimbursement for any personal property damaged or destroyed during the accident, such as a laptop, cell phone, jewelry, eyeglasses, and clothing items. Gather receipts or cost estimates for each damaged item.
General Damages: Pain & Suffering
General damages are non-economic losses that include pain and suffering, emotional distress, loss of enjoyment, and loss of consortium. You won’t have an itemized bill or receipts to help put a dollar value on general compensatory damages.
Pain and Suffering
This category 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 prescribed, and the expectation of a long and difficult recovery.
Emotional distress includes any psychological distress and emotional disturbance caused by the accident, such as anxiety, depression, fear, shock, nightmares, insomnia, post-traumatic stress disorder (PTSD), and more.
Significant compensation for emotional distress often requires evidence from psychologists or psychiatrists. A mental health professional’s written narrative, including diagnosis and prognosis, will show the seriousness of your emotional damage.
Loss of Enjoyment
You can make a monetary claim for your loss of present and future enjoyment of everyday activities, including hobbies, daily exercise, the company of friends, and other recreational pursuits.
Your injuries might keep you from enjoying special occasions and holidays. For example, if you couldn’t prepare Thanksgiving dinner for your family, walk your daughter down the aisle at her wedding, or dance with your spouse on your anniversary.
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 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
Traditionally, loss of consortium is the legal term used to describe the loss of intimacy or sexual companionship with a spouse or significant other caused by a debilitating injury.
Claiming traditional loss of consortium may require medical proof of sexual disability. In some states, only a legally married spouse can seek damages. Convincing the insurance company may take a written statement from your spouse, including intimate details of your sex life.
If your case goes to trial, you and your spouse may have to answer questions about your intimate relationship in a room full of people.
These days, loss of consortium is often described as the loss of the benefits of family relationships. Many states permit consortium claims from family members. For example, children may have a consortium claim against the at-fault party when their injured parent is unable to care for them.
Punitive Damages in Court Verdicts
A judge or jury will award punitive damages as punishment for the malicious or egregious behavior of the liable party. Punitive damages also warn others of the consequences of bad behavior.
Juries have been known to award millions of dollars in punitive damages, usually against corporations whose negligence has resulted in death and disability to victims.
Punitive damages are only awarded in high-dollar cases where the victim is represented by an experienced personal injury attorney who can prove the egregious behavior of the at-fault party.
Proving General Damages
Proving general damages is more difficult than proving specials. Insurance companies are always suspicious of general damages because there is no objective way to measure your suffering or distress.
A common way of coming up with a general damages value 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.
If you’re represented by a personal injury attorney, you won’t have to worry about calculating the value of your special and general damages. Your attorney is well aware of jury verdicts for similar cases.
If you have decided to negotiate your injury claim directly with the insurance adjuster, you can search online for jury verdicts in your state or county. There are web sites dedicated to jury verdict searches that require a subscription, and some that allow free searches but charge a fee for copies of a verdict.
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. If the case settled out of court, there wouldn’t be a verdict form, and you won’t have access to the settlement agreement.
Look for cases with circumstances like 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.
Compensation for Wrongful Death
Types of injury compensation in a wrongful death lawsuit depend on who is filing the action.
If the claim is made on behalf of the estate of the deceased person, the estate can seek compensation for:
- Funeral and burial expenses
- Medical expenses incurred before death
- Pre-death pain and suffering.
Surviving family members may seek compensation for:
- Emotional distress and grief
- Loss of services, like home and yard care
- Loss of financial support from the decedent’s earnings
- Loss of consortium
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