What Are “Damages” in a Personal Injury Case?

When an injury occurs and a personal injury case is brought then the person suing the “plaintiff” is seeking to be compensated for his or her damages from the “defendant” who is the person or company being sued.

Damages may include three (3) different and distinct categories or types of damages. They are: lost earnings, health care costs and payment for pain and suffering.  The damages awarded may include both past and future damages. The final determination of the actual amount of the award for damages is arrived at by either a jury reaching a verdict after a jury trial or by negotiations between the parties at any time while the case is pending, from the day it is filed until the jury reaches a verdict. The “parties” refers to the plaintiff and the defendant(s).

For computing what the amount of a fair settlement should be all the parties will always consider the age and the life expectancy of the person who was injured as well as what is called the “work life expectancy” or, how long would that person have worked before they retired if they were not injured. These numbers are easily obtained from various statistics and charts that the court accepts as reliable.

Each item of damages is then computed taking various factors into consideration. For lost earnings determining the amount for the past lost wages is simply a matter of math: how much was the person earning and for how long were they he out of work? However, if the injured person has not worked since the date of the accident until the date of the settlement or verdict then computing their future loss of earnings becomes more complicated and often requires the assistance of various experts.

First the medical experts need to predict what they believe the future holds for this person. If the person has not worked for the past one or two years will they ever go back to work? Assuming that the medical experts are of the opinion that the person is permanently disabled and will never go back to any type of work then an economist is hired to compute the dollar numbers of the projected future loss of earnings taking into consideration factors such as raises, promotions, pensions, benefits, interest rates and inflation.

Past medical bills are also fairly easy to compute by simply tallying the bills incurred for hospital treatment and confinement, doctor and physical therapy bills, as well as nursing and pharmaceutical expenses.

When it comes to future medical projected costs it requires the assistance of experts to determine exactly what medical care and treatment will be required for the rest of the injured person’s natural life. This is often called a “life care plan” and there are specialists who do these projections as their career and provide their opinions based on what the medical experts determine the person will require.

What happens when a personal injury case is brought involving serious injuries is that each side hires their own experts. What makes a case “adversarial”, or why a case results in “litigation”, is that in my over forty (40) years of experience handling thousands of personal injury cases each side’s experts do not ever agree with each other as to what the damages are or how they should be computed. If the parties cannot come to an agreement as to what is a “fair settlement”, on what is usually a compromise position somewhere between what each expert has set forth, then the jury will be forced to render a verdict after a trial. Only a very small percentage of all cases ever actually proceed to trial and a verdict as most cases do get resolved when all parties agree to a settlement.

The award of damages for pain and suffering are usually the largest part of any recovery in any personal injury case and is the most difficult item of damages to compute. The parties must first agree on the “value” of the pain and suffering for the past, from the date of the accident to the present date. This number or “value” of a case is not contained in any book, law, guideline, or any other place. Even if your case does go to a jury and the judge explains the law to the jury the judge will only explain the factors for them to consider in determining the amount to be awarded for a person’s pain and suffering but the actual amount is left to the jury with very little guidance from the court.

At times the jury will decide to award too little or too much. The judge and the lawyers base their views of what the right number to be awarded is and what is either too little or too much is then based on their past experiences with many other similar cases. The more experienced an attorney is and the more cases they have handled in the past helps them to arrive at this number.

When it comes to computing the value to be placed on future pain and suffering the assistance of the dueling experts discussed above is again required. What have the medical experts determined that this person will suffer from for the rest of that person’s natural life? What exactly are the injuries at present and will they get better or worse over a person’s lifetime? Naturally there is much room for disagreement in this area that necessarily involves predicting with any reasonable degree of accuracy what that person will endure, projecting many years into the future, or for the rest of that injured person’s natural life.

The only guideline that is used to determine the appropriate amount for all three categories of damages, lost wages, medical care and pain and suffering, are past cases that resulted in verdicts by a jury that are often appealed to a higher court. The higher court then has the power and discretion to set what they think the proper award should be and if you decline to accept that amount then the case can be sent back for a new trial with a new judge and jury. Experienced attorneys are familiar with what the higher courts have found to be reasonable awards in their opinion in similar cases in the past and can then use those numbers as a guideline in any negotiations.

When hiring an attorney it is important that you check that the attorney has the experience and know-how to understand and obtain the full value of what a case is worth either by settlement or verdict.

If you or a loved one were injured and are in need of legal assistance, call Jaroslawicz & Jaros at 212-227-2780, or toll free in New York 1-800-269-2780, or submit an online questionnaire. The initial consultation is free of charge, and if we agree to handle your case, we will work on a contingency fee basis, which means we get paid for our services only if there is a monetary recovery of funds. In many cases, a lawsuit must be filed before an applicable expiration date, known as a statute of limitations. Please call to ensure that you do not waive your right to compensation. Or you can email us at ajaros@lawjaros.com.