A person, who is injured through another’s fault, is entitled to recover fair compensation for the injuries they suffer in their personal injury case. Fair compensation includes past, present and reasonably probable future pain and suffering, medical expenses, and reduced earning ability. In addition spouses of the injured person and parents of injured minor children may recover damages for loss of consortium. The following is a brief summary of these types of damages.
An accident victim, who is injured by someone’s negligence, can recover for out-of-pocket or special damages incurred in treating for their injuries. These damages comprise of the payments of medical and similar costs and expenses to doctors and hospitals. Recovery for these costs and expenses may be had if the injured person has paid or incurred legal liability to pay for them. For example, any co-pays to a hospital, doctor’s office or physical therapy office as well as co-pays for prescription medication are recoverable as damages in a personal injury claim. It is not relevant that medical bills are paid by a health insurance company in determining the fair and reasonable value of necessary medical services. You should keep good records and let your lawyer know every medical office and doctor you have seen for your injuries so you can later obtain all the medical bills in order to calculate the total amount of medical expenses.
Additionally, an accident victim may recover a reasonable amount for unascertained medical expenses that are likely to arise in the future as a result of their injuries if they can establish a “reasonable probability” that such expenses are likely to occur.
Lost Wages / Impairment of Earning Capacity
If an accident victim’s injuries prevented them from working following the accident, then he or she can seek compensation for the lost wages as part of their special damages. The injured party will need to produce a disability note from a treating doctor that advises or orders them to stay out of work along with proof of the amount of hours they typically work or would have worked if they were not injured and their pay rate. With this information, lost wages can be reasonably calculated.
A person injured in an accident can also seek recovery for the loss or impairment of the ability to work. This means that the injury sustained in an accident will prevent or impair the accident victim from earning wages in the future. There is no real mathematical calculation to determine loss of earning capacity. Specific factors are considered in assessing damages for loss or impairment of earning capacity, such as, age, education, skill, training and the extent of the injury. Also, tax returns, social security statements, employment records and doctor’s opinions can be helpful in determining lost earing capacity and persuasive to an insurance adjuster.
Pain and Suffering
Another element of damages that an injured party can seek is compensation for pain and suffering. The accident victim must have sustained some physical injury to recover pain and suffering damages. Fair compensation can be recovered for both past pain and suffering as well as pain and suffering that is likely to occur in the future. It is very difficult to place a monetary value on or calculate someone’s pain and suffering. An injured person is not required to prove pain and suffering with mathematical precision. Generally, pain and suffering is determined from the extent of the injury, manner of medical treatment and subjective complaints of the injured person (either through their own statements or statements recorded in the medical records by the doctors). Keeping a contemporary diary about the pain and suffering is a good way to remember and recount the discomfort and agony suffered to explain to an insurance adjuster or, if necessary, a jury. Additionally, observations of family member, friends, and co-workers can be helpful in proving pain and suffering.
Loss of Consortium
In Massachusetts a spouse has a right to bring a claim or action for loss of consortium. Similarly, parents of an injured minor child have a right to recover damages for impairment of their relationship with the child. Black’s Law Dictionary defines consortium as “the benefits that one person, especially a spouse, is entitled to receive from another, including companionship, cooperation, affection, aid, and (between spouses) sexual relations.” A consortium claim is considered independent of the injured spouse’s claim. The spouse and the injured party must have been married at the time of the accident. The typical loss of consortium claim for spouses are in cases of wrongful death.
While this is just a summary of the general damages recoverable in accident cases, it is not exhaustive. All injury claims and cases are different and an experienced personal injury lawyer should be consulted in order to determine the proper compensation that should be sought.
Mahaney & Pappas have over 35 years of experience handling personal injury claims. We have successfully sought, negotiated, and obtained all of these types of damages for the numerous injury clients we have represented over the years. Our experience and knowledge of injury cases offer accident victims an advantage against insurance companies in getting fair compensation for injuries. Call us today at (508) 879-3500 or contact us online to discuss your case with us.