How are damages calculated in a personal injury case?
Question: What can I ask for in my personal injury claim? Is there a specific amount I should be asking for?
Answer: A personal injury settlement demand takes into consideration a number of factors:
- How the injury occurred (auto accident, defective product, negligently maintained premises, etc);
- Severity of the accident itself (for example, a low impact v. substantial impact motor vehicle collision);
- Any comparative negligence on the injured party;
- Severity of the injuries (diagnosis, etc.);
- Age, health and prior medical history of the injured party;
- Reasonableness of the treatment (in terms of frequency, duration, etc.). This is often measured, at least in part, by how much the treatment helped resolve or improve the symptomatic complaints;
- The cost of the medical care;
- The medical prognosis (did the injured party have a full recovery, do they have ongoing residual complaints, will they need future care, will their residuals likely worsen over time, etc.);
- The need for any future medical care (how probable, the probable future care needed, the estimated costs, etc.)
- Lost wages (time missed from work because of one’s injuries or medical appointments);
- Lost earning capacity (if can no longer perform the type of work done before their injury);
- Any other out of pocket expenses (medication, ice, heat, machines, equipment, mileage, etc);
- Pain & Suffering (all the aggravation caused by the injuries). In other words, the adverse impact the injuries had on one’s life (during treatment and/or from any residuals
All of the above will have an associated dollar figure except, pain and suffering. Medical bills will have a dollar amount as will lost wages.
Lost earning capacity can be calculated by the appropriate expert based on past earnings, residual restrictions/limitations, and the prevailing job market.
Pain and suffering is a nebulous number that is different for every claimant.
Although there might be some generalities in terms of soft tissue injuries and the average amount of treatment received before such injuries typically resolve, every case is truly different as there are many factors and variables to consider.
A personal injury lawyer will base his/her evaluation of your claim based on all of the above factors, as well as their experience in dealing with the involved insurance companies, and in monitoring arbitration and trial results in the County where a lawsuit of your claim would have to be filed if unable to negotiate a settlement.