What is the Value of Your Case?
What is your personal injury case worth? What damages are recoverable? What is the value of your pain and suffering?

These are frequently difficult questions which require thorough analysis by a competent attorney. Even then there will be a great deal of uncertainty as to what a judge and jury will ultimately do with your case. While there can never be any guarantees in this area, the law does provide a number of guidelines which are easily understood and which can serve as a beginning point to assess the value of your case. In addition examples of actual personal injury recoveries from jury verdict reports and a personal injury case evaluation by our office can be used to gather information, both of which will be helpful in determining the value of your case. Keep in mind this is general information and is not meant to be legal advice.

The General Rule
The general rule is that when one is physically injured as a result of negligent or wrongful conduct of someone else, he or she should be paid for all the injuries and damages which have been caused. These include both economic and non-economic damages. The aim of the law is to provide full compensation for all damage which an injured party suffers. This includes both those damages which have actually been suffered to date and those which are reasonably certain to be suffered in the future.

The result is that one is generally entitled to recover for each of the following:

Medical expenses - Including those costs which are incurred to diagnose and/or treat injuries. Recoverable items extend to expenses for doctors, hospitals, therapy and the like. ( Some states require your own car insurance to pay, then you can claim beyond that.). These are economic damages and if health insurance pays them a subrogation issue arises. If you have no medical insurance you can get treatment on a medical lien.

Pain and suffering- Past and future pain and suffering and emotional distress suffered as a result of injuries. These are non-economic losses.

Wage Loss - All actual past and future loss of income from the date of accident to the end of life expectancy. These are economic losses.

Loss of earnings capacity - It is important to note that this is for the loss of the ability to earn income, not the actual loss of income itself. Thus, you need not even be employed at the time of injury to be entitled to recover for such a loss. These are economic losses.

It must be kept in mind that the award of damages must be reasonable in light of all the facts and circumstances relevant to the case; the damages must have been caused by the defendant's wrongful conduct.

Further, a party who is injured has a duty to mitigate, or minimize, the damages which he or she suffers so far as you are able. In so doing, the party must use reasonable diligence in caring for injuries so as to prevent further aggravation and to accomplish healing. While you need not follow a course of treatment or undergo an operation simply because a doctor advises it, the refusal to do so must be reasonable in light of the risks which the proposed treatment presents, the benefits which might reasonably be anticipated to be derived, the reasonable fear of pain, and one's personal circumstances.

RIGHT TO RECOVER MEDICAL EXPENSES

In addressing the recovery of medical expenses beyond what your car insurance may pay under the PIP coverage or medical pay coverage, you should remember that you are entitled to recover both for all medical expenses which have been incurred to date and for those which are reasonably certain to be incurred in the future. Such expenses must be reasonable in amount, must be reasonably necessary for the treatment of the injury sustained, and must have been necessitated by the injury. In assessing the value of this component, you should include all of the following: Hospital expenses; Doctor's expenses; Emergency and Ambulance expenses; Physical therapy or Chiropractic expenses; Expenses for psychological or psychiatric treatment; Rehabilitation expenses; Retraining expenses (e.g., speech therapy and vocational rehabilitation); Expenses for drugs and medication; Expenses for prostheses; Expenses for physical aid and equipment, such as crutches, canes, wheelchairs, collars and braces; Expenses for other medical supplies; Expenses for x-rays; Expenses for laboratory work; Expenses for diagnostic procedures (e.g., CT scans, MRI's, etc.) and, Expenses for medical monitoring if reasonably necessary due to the injuries, which have been, sustained.

An injured party is to be awarded the reasonable value of those medical services that have been rendered. This is regardless of whether you have actually paid those bills or whether no bill has been sent at all. Even if an insurance company (e.g. health insurance or workers comp.) has paid the expenses, you are still entitled to recover those losses (except amounts paid by a PIP auto carrier).

If you do not have any insurance at all you can get medical care from a willing medical office and pay them out of your settlement with the liability insurance. This is called a medical lien.

RIGHT TO RECOVER FOR PAIN AND SUFFERING

Pain, suffering and emotional distress frequently constitute the principal element of damages in personal injury cases. While there is often difficulty in assessing the precise value of such an award, however experienced trial lawyers have developed methods to convince insurance companies and jurors how much to award. There are no fixed standards by which to assess such an award and it is left to the sound discretion of the jury based on the evidence and their own experience. It is their job to award a reasonable amount to compensate the injured party and to include both the pain, suffering and emotional distress which has been suffered to date, and that which is reasonably certain to occur in the future.

The components of this award include both physical pain and mental suffering. Physical pain includes that pain which has resulted from the physical injury as well as its discomfort. Mental suffering includes compensation for such things as Fright; Shock; Nervousness; Anxiety; Worry; Distress; Grief; Embarrassment; Humiliation; Mortification; Indignity; Apprehension; Fear; Terror; Ordeal; Phobia; Neuroses; Loss of enjoyment of life; Sleep difficulties and Inconvenience

RIGHT TO RECOVER FOR WAGE AND EARNINGS LOSS

You are entitled to recover for the loss of wages and loss of earnings capacity which has been suffered. Actual wage loss is determined by multiplying the monthly income by the time off work because of the accident and must be supported by both medical and wage documentation. For loss of earning capacity the emphasis is on the loss of the ability to earn income, not merely an actual loss of earnings. Thus, although you may not have actually lost any earnings at all, such as in the case where you are not employed at the time of injury, you are still entitled to recover for the loss of the ability to earn income. Further, you are entitled to recover for the loss of your ability to make a living, even if you can otherwise continue working but at a reduced level of income.

The test in addressing this loss is not whether one would have earned income, but whether one could have earned money, except for the injuries which have been sustained. The actual loss of earnings is only one means of determining the value of the loss of earnings power. If you are self-employed, past profits may be another means of demonstrating the value of the loss of earnings capacity if the individual's personal efforts are the primary factor in earning income.

In calculating such a loss, you should include both that income which has been lost to the present time, and that which is reasonably certain to be lost in the future. In determining the value of future lost income, you are entitled to take into account economic trends such as inflation, promotions and pay raises which you might reasonably anticipate receiving, as well as commissions, bonuses, tips, gratuities and the like. Where your life is shortened, you are entitled to recover the earnings which would have been earned but for the shortened life expectancy. And, where an injury reduces your physical or mental abilities so as to be unable to take advantage of likely advancements in the way of promotions or alternative job opportunities you are entitled to recover the reasonable value of what has been lost.

Loss of earnings capacity also includes reduction in work skills, strengths, and the ability to work. A delay in advancement or promotion entitles you to recover the loss of both the past and future income which has resulted. In performing such a calculation, you should be certain to include the loss of retirement credits, insurance benefits, sick leave and vacation leave, as well as any other benefits which you reasonably would have anticipated receiving. Where you receive income either from disability insurance, or voluntary employer payments, the defendant is not given any credit and the injured party is still entitled to recover that sum.

RIGHT TO RECOVER FOR OTHER LOSSES

It is virtually impossible to provide a complete listing of all the damages which may be recoverable as a result of personal injuries. This is because the facts and circumstances vary from person to person and case to case. Nonetheless, there are a number of additional items which should also be kept in mind for a calculation of damages. These include:

1. Increased susceptibility to subsequent disease and/or injury. In many instances, a party's vitality, strength, and ability to fight off injury or disease is lowered as a result of the physical injury which has been suffered. In some cases, injured parties are rendered particularly susceptible to a disease or injury. Victims entitled to reasonable compensation for this loss as well.
   
2. Decreased life expectancy can also result from a physical injury. In those cases, the injured party is entitled to recover reasonable compensation for that loss. This includes the loss of earnings and/or earnings capacity which may result, the loss of the enjoyment of life, and the worry and emotional turmoil which is created as a result of facing a life which is significantly shortened.
   
3. Where you are unable to do essential services, housework, gardening, cook, maintain a home, care for children or dependents, or do other normal family and household tasks, he or she is entitled to recover the reasonable value of that loss, even if other family members perform those tasks for them. Parties frequently retain economists or others who have special expertise in determining the value of these services. Estimates of their value can be obtained, however, by ascertaining what it would cost to hire someone to do the various tasks which the injured party can no longer perform.
   
4. You are also entitled to recover for the aggravation of a pre-existing condition. By way of example, where you hurt your back prior to the incident in which injuries are claimed, you are entitled to recover for the worsening of that condition. While you are not allowed to recover for what would have occurred regardless, you do have a right to recover for the period of time that such injury was worsened. In other words, if your condition has been made worse, or if degeneration of the body has been sped up by the injury, you are entitled to recover for the loss which is the result of such an aggravation.

CONCLUSION

The calculation of what you are entitled to recover in a personal injury case is never easy. It requires attention to detail and an experienced attorney's knowledge of the law. One can, however, begin to estimate recoverable losses. A number of research sources include illustrations taken from actual cases which may be helpful in understanding how such damages work out in real life.