The following article is the fifth in a series about personal injury law. You can read the first article here, which explains where laws come from. You can read the second article here, which explains what a tort is. The third article covers proving the conduct of the responsible party led to injury. The fourth article explains proving causation. This article explains how monetary damages are calculated in a personal injury case. It is written for people who do not have legal training. It should not be relied upon for complete accuracy or as legal advice.
Damages in a Personal Injury Lawsuit
The simplest definition of personal injury is an injury to a person’s body or mind. Once an injury has occurred, the injured person is authorized to assert a claim against the responsible party. Asserting a claim alone does not do anything. The injured person must also prove that their claim is valid. This means establishing a “prima facie case, which is a fancy Latin way of saying, “proven on its face.” The tort of negligence has four well-defined elements:
- Breach of Duty
At this point, we have learned about the first three elements. The last element is damages – how much money is owed to the injured party. The plaintiff has the burden of proving their damages by a “preponderance of evidence.” In technical terms, this means the greater weight of the evidence must prove a fact is more likely to be true than false. At trial, attorney Matt Wetherington explains it to jurors this way:
You must weigh the evidence and decide what makes the most sense. You are not required to accept all statements as true. People and corporations lie. You get to determine whether a person has been truthful. It is your job to decide what happened. Unlike in a criminal trial, your job is to simply determine what is most likely.
The law of torts provides guidelines for compensation. Compensatory damages are dollars awarded to “repay” the plaintiff. This is to restore the plaintiff to the financial position they were in before the injury occurred. The system is not perfect. Life, limb, and a pain-free existence cannot be restored. However, monetary damages provide a path to restore the plaintiff to the same financial position he or she was in or should have been before the loss.
The damages fall into two categories: general damages and special damages. General damages are “non-economic” losses, including pain and suffering, scarring or loss of limb, or mental pain. These damages have no specific dollar value. Special damages are “economic” losses, including medical expenses, lost wages, or the cost of hiring household help. These losses have a specific dollar value. They are usually easy to determine. You only need the physical documents to prove that the expenses were incurred. General damages are sometimes referred to as non-economic damages. And special damages are sometimes referred to as economic damages.
Monetary damages are usually classified as past or future damages. Past damages are incurred prior to trial. Future damages are those that are likely to occur after trial.
Plaintiffs usually present a claim for past special damages. This includes medical bills resulting from the injury up to the trial date. The plaintiff’s injury may be serious enough that medical bills are expected to continue. The plaintiff will then present an additional claim for future special damages. This represents expected future medical bills. A physician usually testifies to these facts. Hint: always be kind to your doctor.
Here are some examples of special damages. As you read the list, think about how to help your attorney prove the existence and amount of each category.
- Medical and medical care expenses;
- Rehabilitation services;
- Custodial care;
- Lost wages;
- Lost earning capacity;
- Loss of support; and
- Cost of hiring household help.
Let’s look at a lost wages example. Presume the injured person earned $7,000 per month and was off work for exactly three months. The facts have been verified with the employer. The person should get $21,000, right? This seems simple, but the actual records can contradict the entire case.
In the example, suppose there is a note in your file by your doctor dated six weeks after the accident. “After my exam today, full strength and range of motion has returned to patient’s left shoulder. There is no more muscle spasm. X-rays are normal. It’s my opinion the patient is clearly able to return to work as of today.” This medical note contradicts that earnings were lost for a three-month period. Contradictions like this can completely sink a case.
The injured person will also present a claim for past general damages. General damages include pain and suffering up to the date of trial. Permanent injuries result in more serious claims. In those cases, the plaintiff will present an additional claim for future general damages. Future damages represent future pain and suffering expected until a reasonable time in the future.
Here are some examples of general damages:
- Pain and suffering;
- Physical impairment;
- Mental anguish/emotional distress (mental, psychological suffering, which includes fright, distress, anxiety, depression, grief);
- Interference with normal living;
- Interference with enjoyment of life;
- Loss of capacity to labor and earn money;
- Impairment of bodily health and vigor;
- Fear of extent of injury; and
- Shock of impact.
These types of damages are not easy to determine. While special damages represent out-of-pocket losses, general damages represent quality of life losses.
Most of the elements of general damages are self-explanatory. But some elements deserve further discussion. Perhaps one of the most significant items of general damages is pain and suffering. Obviously, pain and suffering are not easy to calculate. There is no objective yardstick for a jury to measure human suffering. Instead, the decision about this amount is left to the jury. Jury verdicts and settlements vary widely, even for the exact same injury. A broken ankle in one courtroom could be worth $10,000 in pain and suffering. In another courtroom, it could be worth $100,000. Matt Wetherington tried a case in Atlanta that resulted in a $2.8 million verdict for a broken ankle. The variance is due to the individual plaintiff, the jurors at the trial, and the effectiveness of the injured person’s attorney.
Let’s take another example using the loss of a finger as the injury. What is the impact upon the person’s life? If the person is a professional concert violinist, the loss of a finger would be disastrous. This injury could stop a person from playing violin or at least stop them from playing professionally. Either way, the musician’s life would be negatively impacted.
On the other hand, if the person with the injured finger were a personal injury lawyer, the lawyer would have an impairment but could continue to work. There would be no financial consequences to the lawyer. General damages for physical impairment cannot be viewed in a vacuum. Every case is different. The effect on the individual’s life must be considered.
General Damages – Future Damages
Future damages depend upon the type of claim, the age of the plaintiff, and the evidence presented. Permanent injury claims look at life expectancy rates to determine how long the pain and suffering will likely last. An injury to a child could last 50-60 years. An injury to an elderly person may only last 5-10 years.
Proving Future Damages
In establishing damages, medical testimony is essential. Your doctor typically testifies that your injuries were caused by the accident in question.
Future damages cannot be based on “possibility.” Neither do they need to be based on “absolute certainty.” The physician’s opinions concerning the injury and outlook for the future must be based on reasonable medical certainty. Such opinions are often expressed in terms of “more likely than not, “to a reasonable degree of medical certainty” or “at least 51%.”
For example, in the case of a fractured hip, the question of whether arthritis will develop in the hip in the future is asked. The supporting medical testimony would have to state that this development is “likely” or “probable.” All future special and general damages must be reasonably certain to occur. For example, Wetherington tried a case in north Georgia where a motorcycle rider lost his leg. At trial, a doctor testified that the man would require over $3 million in future medical bills for his treatment. The jury awarded him the full amount because the plaintiff and his doctor were credible. You can read about that motorcycle verdict here.
General Damages – Loss of Consortium
“Consortium” is a special right reserved for married people. It refers to the right of companionship between a husband and wife. This type of claim is often used to compensate for the loss of services your spouse provides. These include sexual relations, cooking, cleaning, household chores, household repairs, childcare, and similar things.
Every marriage is different. When determining whether you should pursue a loss of consortium claim, there are several questions to consider. Is your marriage on good terms? Have you been separated or sought counseling, individually or together? Is your spouse willing to be involved in litigation? You will have to share intimate details about your relationship with your lawyer, paralegal, and, ultimately, a jury. Both of you will likely undergo vigorous questioning in deposition and in front of a jury of strangers. If you or your spouse is not willing to participate, then it’s best to eliminate this potential claim right away.
Wrongful Death Damages
In Georgia, surviving family members usually have two claims that can be filed with the court in wrongful death cases.
The first claim, called the wrongful death claim, is created by statute. This claim is for the “full value of the life of the decedent” from the deceased’s eyes. This means that a jury is asked to consider what this person’s life meant to the deceased. This can include both economic and non-economic values. Economic value is determined by calculating the amount of money the deceased would likely have earned in his or her natural lifetime. The non-economic element considers what the deceased had that made him or her enjoy life. These include relationships, daily activities, volunteering, getting married, studying for a driver’s license, and raising a child.
The second claim is the estate claim. This allows the deceased’s family to recover damages for the pre-death pain and suffering of the decedent, and other expenses. In Georgia, any claim for punitive damages must also be brought by the estate. If the decedent had a will, then the administrator named in the will must bring the estate claim.
Georgia’s wrongful death statute sets out strict rules who can bring the claim. If the deceased left a surviving spouse, then he or she is the only person who can bring it. For the deceased children, the surviving spouse represents the children and must share any awards with them. It’s important to note that the spouse must legally share the award with the children. Although, the spouse can never receive less than one-third of the recovery, no matter how many children there are. If the deceased was divorced, then any surviving children of the deceased would hold the claim equally.
When there is no surviving spouse or children, the administrator or executor of the deceased’s Estate may bring the action. The damages recovered are held for the benefit of the next kin.
This is just the tip of the iceberg for understanding what damages are available in personal injury claims. Personal injury lawyers spend years learning better ways to present and prove damages. In almost every case, having a skilled trial lawyer will increase the value of the claim. To speak to a trial lawyer for free, click contact on this page or call us at 404-888-4444.