personal injury attorneyIf you were injured in an accident in Massachusetts that was caused by someone else, you have the legal right to seek compensation. The legal term for the compensation you would be seeking is damages. In a claim for personal injuries, the term “damages” often comes up. Although damages are pretty well understood and routinely used by lawyers and insurance adjusters, accident victims may not completely recognize what damages are exactly. 

Occasionally, I’ve used the term damages with some of my personal injury clients or prospective injury clients and they asked if I was referring to the actual damage caused to their motor vehicle. So, I thought it would be helpful to write this article to help anyone injured in an accident understand exactly what damages are. This way, you will have a full awareness of what types of compensation you may seek. 

Definition of Personal Injury Damages

Preparing this article brings me back to my law school days, specifically the Torts class. While damages come up in other areas of law, in Torts class we learned about them in negligence claims and causes of action. Damages are one of the elements of negligence. In law school, I recall purchasing a Black’s Law Dictionary. Black’s is a trusted legal dictionary of law definitions and terms. Damages, as defined in Black’s, are: 

“A pecuniary compensation or indemnity, which may be recovered in the courts by any person who has suffered loss, detriment, or injury, whether to his person, property, or rights, through the unlawful act or omission or negligence of another. (cites omitted). A sum of money assessed by a jury, on finding for the plaintiff or successful party in an action, as compensation for the injury done him by the opposite party. (cites omitted). Every person who suffers detriment from the unlawful act or omission of another may recover from the person in fault a compensation therefore in money, which is called “damages.”. 

Well, that was a lot for the definition of the simple word “damages”. In plain language, personal injury damages are a sum of money awarded to compensate a person injured by the wrongful act of another. 

In personal injury lawsuits and claims, the damages are also referred to as compensatory damages – money that compensates the injured party. Compensatory damages are subdivided into two separate categories: Special Damages and General Damages. 

Special Damages in a Personal Injury Case

Special damages in a personal injury case are straightforward and easy to understand. Basically, they are damages that can be calculated with simple math.  For example, when someone is injured in a rear-end car accident and they require medical treatment, the medical bills they incur for the related treatment are considered special damages (or informally referred to as just “specials”). We can use simple math to add up all the medical bills for the treatment the injured party needed to treat their injuries. 

Another type of special damages includes lost wages. Let’s assume the person in the previous example was unable to work for two months because of the injuries they suffered in the rear-end crash. Using simple math, we can calculate the amount of wages/earnings they lost by being unable to go to work.  

General Damages in a Personal Injury Case

General damages, on the other hand, are more difficult to quantify than specials. The most prominent type of general damages are pain and suffering. In Massachusetts, a person injured because of another’s negligence or carelessness is permitted to seek and recover pain and suffering combined with bodily harm. Emotional or mental trauma and distress is another form of general damages that are recoverable.

A matter that frequently arises, and is often thoroughly disputed and negotiated, is the value of someone’s pain and suffering. There is really no mathematical formula that we can use to calculate a dollar value on another’s pain and suffering. Of course, the pain and suffering of a person who suffered a broken leg and required surgery will be considered greater than someone who suffered a back strain in an accident. But again, how do we determine the sum of money to compensate someone for their pain and suffering? 

The older method was to use a multiplier. Essentially, using that approach, the person(s) making the determination of general damages (judge, jury, lawyer, or insurance adjuster) would multiply the total special damages (i.e., medical bills, lost wages, etc…) by a certain number. For example, I’ve heard some say that they used to multiply specials by three to calculate pain and suffering. This is not often, if ever, used these days. 

Many insurance companies, when pressed, explain that they use the number of weeks an injured person is treated and multiply that by a weekly rate to determine pain and suffering. The weekly rate may be higher closer in time to the accident and less toward the end of treatment. This is because, generally, someone is expected to be in more pain soon after the accident but should be making progress as treatment continues. 

In a personal injury lawsuit that goes to trial before a jury, it is up to the jury to determine the amount of general damages to award a plaintiff for pain and suffering. At the conclusion of all the evidence, the judge will instruct the jury on the law, including damages, and the jury will render a verdict. If the verdict is for the plaintiff, the jury will award the plaintiff an amount of money to compensate him/her for damages, including pain and suffering. The severity of the injuries and testimony by the plaintiff are important factors for the jury to use in determining the amount of money to award for pain and suffering. Therefore, a plaintiff must be properly prepared by their personal injury attorney to testify. The jury must be informed about the details of the pain and suffering the plaintiff endured because of the defendant’s negligence. 

Having the Right Personal Injury Attorney Makes a Difference

The purpose of a personal injury claim or lawsuit is to seek financial compensation for the losses incurred because of the wrongful party’s negligent actions. Determining the appropriate amount of compensation is not as easy as it may seem. Valuing a personal injury claim or case depends on several factors. As discussed above, specials are rather easy to calculate, however, the general damages, such as pain and suffering, pose more of a challenge. You are probably thinking, “What’s my case worth?” and “How much will I get?” In most cases, determining the fair value of general damages is best left to the expert personal injury attorneys. 

A Massachusetts personal injury lawyer that has experience in handling personal injury cases in and out of court will be able to determine the appropriate amount of compensation for general damages. Many times, it’s prior jury awards for pain and suffering, past settlement, and/or mediations and arbitration awards that are helpful in determining the appropriate amount of compensation. Understanding the results of past cases with similar injuries will allow an attorney to understand an approximate range of compensation and know what’s fair and what’s not. 

What if the insurance company does not make a fair and reasonable settlement offer?  Then, you have the right to file a lawsuit and take your case to a jury trial. In that situation, the jury will determine the amount of compensation to award. Being properly prepared to testify at trial is extremely important. The plaintiff’s testimony is a big part of the evidence jurors will use when deliberating to determine an amount of compensation for pain and suffering. A plaintiff that is prepared and explains in detail about the pain they experienced and how they suffered is in the best position to get a better jury award. This all starts with the right lawyer that can help his clients understand what’s important about their testimony at trial.

Contact Our Experienced Massachusetts Personal Injury Attorneys Today

One thing’s for sure, you should not rely on the insurance companies to tell you what your case is worth. You should have someone on your side to advocate for you and fight to get you a fair and just amount of compensation.

Charles S. Pappas
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Massachusetts Personal Injury & Workers' Compensation Attorney