One the first questions most clients have when considering a personal injury claim is “What sort of damages can I recover?” The primary goal of damages is to compensate the injured party for his or her loss. In Virginia, if proven with reasonable certainty, a personal injury plaintiff may recover damages related to:
• Bodily injuries the plaintiff sustained
This element of damages includes the effect that bodily injuries have on the plaintiff’s health given the degree and probable duration of injury. This type of damage is the one commonly known and expected to result from an accident. Common injuries for a motor vehicle accident include neck and back injuries, such as herniated discs, spinal cord damage, sprains, or strains.
• Physical pain, suffering and mental anguish
An injured person can recover for pain, suffering and mental anguish that naturally flow from bodily injury. An insurance company will try to minimize an injured person’s claim of pain and suffering. To counter this tactic, the plaintiff can present evidence of the nature of the injury and testify about the pain, inability to sleep, and prescribed pain medication. An injury, like a broken arm, is more obvious than lower back pain radiating down into the legs. The treating physician may even be able to describe how painful a procedure or injury can be.
These damages can also include future pain and mental anguish if evidence suggests that the injuries will have a continuing effect as, for example, when the treating physician indicates that the injured person will experience low back pain for the rest of his or her life. Compensation for such future pain would be appropriate. If the injured person is still suffering at the time of trial, a jury may infer future discomfort and inconvenience.
• Disfigurement or deformity and any associated humiliation or embarrassment
Common examples of disfigurement or deformity include scarring or loss of limb. One does not need proof of humiliation or embarrassment to recover for disfigurement or deformity. Rather, humiliation and embarrassment can be inferred from the fact of the disfigurement or deformity. In other words, a jury could assume that one suffers humiliation and embarrassment when one’s body has been irreversibly disfigured as a result of an accident. The existence of disfigurement or deformity is a large factor that can heavily affect the value of one’s personal claim.
A frequent complaint by injured victims is the pure inconvenience the injury creates. While most victims are not looking to retire on a personal injury claim, they do want to be made whole. Inconvenience includes traveling to doctor appointments and to the pharmacy, undergoing physical therapy, and completing home exercise programs. A plaintiff may recover for both past and future inconvenience.
• Medical expenses
A plaintiff may recover reasonable medical expenses incurred for treatment that was necessary due to the injuries. One way that insurance companies try to limit recovery is to argue that the medical treatment, either all or part, was unnecessary or was related to a pre-existing condition. The treating physician will have to testify that the current treatment was related, necessary, and caused by the accident.
Typically, reasonable and necessary medical expenses are proven through the introduction of medical bills at trial. An injured plaintiff is entitled to full compensation and a defendant cannot deduct amounts written off by health care providers. Also, a plaintiff can recover the full amount of the bills, not the amount paid by the plaintiff’s health insurance. Plaintiffs also can recover for the future effect of an injury including medical expenses that may be incurred in the future. The amount of medical expenses is a significant factor in the value of a case.
• Lost earnings
Plaintiffs may recover earnings lost due to injury. Lost earnings can be proven through tax returns, pay stubs, W-2s, or any other available documents to prove income. The use of sick leave, vacation days, or paid time off is also compensable. In other words, an injured person would not have needed to take those days off had he not been injured. Lost earnings can be the result of obtaining medical treatment, attending physical therapy, or simply being held out of work by a doctor. It is important to ensure that the treating physician gives the injured person work release orders to prove that doctor has not allowed the person to return to work.
• Loss of earning capacity
A plaintiff may also recover for loss of earning capacity and future earnings. For example, an injured person who suffers a traumatic brain injury and is no longer able to work and earn an income should be compensated for the loss of earning capacity and future earnings. Generally, an expert is required to testify about how future earnings will be diminished.
In addition to these compensatory damages, some plaintiffs may be awarded punitive damages. Punitive damages are not meant to compensate the plaintiff but rather are intended to punish the wrongdoer for particularly egregious behavior. In Virginia, punitive damages are capped at $350,000. Punitive damages are not favored and are awarded at the discretion of the jury. Cases in which punitive damages may be warranted are those in which the injury is caused by a drunken driver. The drunk driver must have a blood alcohol concentration (BAC) of 0.15 percent or more by weight by volume or 0.15 grams or more per 210 liters of breath.
Understanding these elements of damages is important in determining what evidence is necessary to support a personal injury case. Consultation with an experienced personal injury attorney to help with evaluating these areas of damages is recommended.