Q. What type of monetary damages am I entitled to if I’ve been injured by another person’s negligence?
A. There are basically two categories of damages you can recover: economic damages and non-economic damages. Economic damages consist of monies you are out-of-pocket for, such as medical expenses and lost wages. Non-economic damages are damages for your pain and suffering and other “intangible” losses that don’t have a specific amount. Punitive damages can be recovered in cases where the other party deliberately or intentionally injured you, as in an assault and battery.
First, let’s look at economic damages. You are entitled to be compensated for all of your medical expenses reasonably related to the accident. This includes past, present, and future expenses, such as any fees charged by the city for paramedics, the cost of an ambulance to transport you to the hospital, the emergency room charges for diagnosis and treatment, including x-rays, CT scans, the hospital room if you are admitted and all related charges, all doctors’ fees, lab costs, radiology fees, follow-up treatment, medications, braces, operations, etc. If you broke your neck or back and were paralyzed, either from the neck down (quadriplegia) or from the back down (paraplegia), you are entitled to recover all costs related to your injury, including personal attendants, medical equipment, specialized wheelchairs, doctors’ and specialists’ visits, rehabilitation and physical therapy costs, costs to modify your home to accommodate a wheelchair, etc.
Economic damages also include lost wages for time you were off work. Included in your damages for your base salary or wages are damages for lost overtime, if working overtime is something you ordinarily do. If you can no longer work at your job and must take a different, lower-paying job, you are entitled to be compensated for the difference.
Q. Before the injury, I worked for myself but am no longer able to do that anymore. Am I entitled to damages for the loss of my business?
A. If you have been working at your own business for more than one year, you are entitled to be compensated for your monetary losses due to your inability to work at your business anymore. If you were working at your own business for less than a year, generally you cannot recover damages for your lost business, as the law considers you do not have a sufficient “track record” of wages to compare them to and awarding an amount would be too speculative. If you’ve been running your own business for several years or so, and your gross receipts have been increasing but your expenses are substantial because you have been putting the money back into the business and don’t show much of a profit, this is taken into account in determining the amount of damages you are entitled to. It will probably be necessary to hire experts in business valuations to determine the amount of your loss compared to how much you could have expected to earn had you not been injured and could “grow” your business into a thriving enterprise.
Q. After the accident, I suffered through several months of severe pain. Does the other party have to pay me for that?
A. Yes. Pain and suffering is fully compensable. They are classified as “non-economic” damages, as there is no precise, documented financial loss that you can show on a flow chart or receipt. Often the amount for pain and suffering exceeds the cost of medical treatment for your injuries. It may be necessary for you to be treated at a specialized pain clinic. If, for example, you were severely burned when the car you were in caught on fire when the other driver hit you, you are entitled to substantial damages for physical pain and emotional suffering.
Q. Because of the injuries to my leg, I’ve now got a permanent limp and can’t do many of the activities I used to do. For instance, before the accident I was a devout runner and tennis player, but I can’t do those activities anymore. Does the person who injured me have to pay for this?
A. Yes. You are entitled to damages for loss of or impaired “enjoyment of life.” What this basically means is that if, because of the accident, you are no longer able to participate in activities that you enjoyed, the person has to compensate you fairly for these damages.
Q. I suffered a disfiguring scar on my face as a result of the accident and ensuing surgery. Am I entitled to receive monetary damages for that?
A. Yes. You are entitled to be fully compensated for disfigurement and humiliation. If you undergo reconstructive surgery by a plastic surgeon or other doctor, you are generally entitled to all of the economic costs involved in the surgery (such as the doctor’s fees, the hospital’s charges, etc.), as well as the pain and suffering you experience as a result of the surgery.
Q. My spouse was seriously injured in an accident, and our sex life has been nonexistent since the accident. And we can’t go for our evening walks anymore. I miss those intimate times. Can I get compensated for my losses?
A. Yes. When a spouse is injured, the other spouse is entitled to recover monetary damages for “loss of consortium.” In days past, “loss of consortium” was mainly associated with the inability to have sexual relations, either for physical or emotional reasons caused by the accident. Note that recovery for loss of consortium applies only to married couples and registered domestic partners. If you are engaged and on your way to the chapel to get married and are severely injured in an accident, your spouse-to-be is not entitled to recover damages for loss of consortium, even though you were only an hour or two away from getting married.
Q. My son suffered severe brain damage in a near-death drowning at my neighbor’s pool because there wasn’t adequate supervision. Now we can no longer do such things as play catch with a baseball or engage in any of the fun activities we used to do. Can I recover damages for loss of consortium due to his injuries?
A. No. Only spouses and registered domestic partners can recover damages for loss of consortium. Loss of consortium related to the injuries to one’s child or parent is not compensable. However, if your child or parent was contributing financially to you, then you are entitled to recover damages for the lost financial contribution.
Q. The doctor told me that I am now at more risk for future medical problems because of the injuries I suffered in the accident, and that the injuries from the accident probably cut 10 years off my life. Am I entitled to recover monetary damages for that from the party who hurt me?
A. Yes. You are entitled to recover damages for susceptibility to future harm, injury, or medical problems. You are also entitled to recover damages for a shortened life expectancy.
Q. Ever since the auto accident I was in, I’ve been depressed and anxious. I don’t feel like going out or doing much, I’m sad a lot of the time, and now I’m starting to be afraid of driving. Does the driver who hit me have to compensate me for these emotional injuries?
A. Yes. You are entitled to recover damages for emotional distress and psychological injuries. In addition to compensation for your psychological injuries, you are also entitled to recover monetary damages for any counseling or therapy you have to undergo, as well as any medications your doctor or psychiatrist may prescribe for you.
Q. How do you figure out the amount of damages an injured person is entitled to?
A. Every case and every person is different. Some people will recover quite quickly from their injuries and be able to resume a normal life after a few weeks or months. Other people will recover much more slowly, with complications such as infections or severe psychological injuries that prevent them from getting back to their normal life for months. Some people may be so physically and emotionally scarred from the same type of injury that they never get back to being their “old” self.
To give you an example of the differences in damages two persons could get for the same injury, suppose that two people lose the tip of their index finger in an accident. One person is an assembly line worker and the loss of the tip of their finger does not interfere with his or her ability to work. The other person, however, is a star pitcher for a professional baseball team making millions of dollars each year, but the loss of the tip of his finger results in the end of his career because he can no longer grasp the ball the way he used to. In that situation, the injured pitcher would be entitled to receive millions of dollars to make up for the money he would have made had he not been injured.
Some damages—such as past medical expenses or lost wages—are capable of being determined quite easily. Other damages—such as pain and suffering and future medical expenses—are much harder to put numbers on. Attorneys research how much juries have been awarding plaintiffs (the injured person) in similar cases or how much similar cases have been settling out of court for, and then take into account the special circumstances of their client’s case and his or her injuries to come up with a reasonable value for the case.
Another factor in determining the amount of monetary recovery from the person who caused the injury is, how much insurance and other property does he or she have. Let’s say that you’ve broken your neck and become a quadriplegic when a car hit you while you were lawfully crossing the street at a marked crosswalk. Damages in a quadriplegic case generally run into millions of dollars. But if the errant driver has only a $15,000 insurance policy, has a job that pays only minimum wages, and has no other property to speak of, the case will probably settle quickly for the full $15,000. But if the person who hit you was driving a company vehicle on company business, the company will likely have much higher insurance limits and even an “umbrella” policy that provides several million in coverage. Additionally, the business may own other property, such as the building they’re in which can be used to negotiate a higher settlement or satisfy a jury’s award.
Q. I was seriously injured in an automobile accident that was partly my fault. Does this mean I can’t sue the other driver for my hospital bills, lost wages, pain and suffering, and other damages?
A. Not at all. In California, the legal doctrine of “comparative fault” or “comparative negligence” applies. Suppose the total amount of your damages was $100,000, but you were 40% responsible for the accident and the other driver was 60% at fault. In that case, the amount you could recover from the other driver would be reduced by 40%, so instead of getting $100,000, you would recover only $60,000. Car accident cases in which both parties were at fault can get complicated, as the other driver’s insurance company will try to place all or most of the blame for the accident on you. It is critical that you be represented by an experienced personal injury lawyer in situations such as this, especially if your injuries are serious.
What is the Collateral Source Rule?
In personal injury cases, the Collateral Source Rule is intended to help promote full justice and compensation from a defendants wrongdoing. The rule basically does not allow for an award to be reduced by a judge or jury just because the plaintiff received benefits from other sources, such as health insurance. The rationale behind the collateral source rule is that a defendant should not benefit from the plaintiff’s investment in private health insurance. In some states, the collateral source rule prohibits the admission of evidence that would inform the jury that the plaintiff has been compensated by a different source other than the defendant (i.e. health insurance).