What Damages Are Recoverable in a Personal Injury Claim?
In a civil claim (by settlement, lawsuit or demand letter) for personal injury, you may be able to collect financial compensation or “damages” from the party at fault. There are limiting factors under Louisiana Law. These are factors to consider before deciding what your case in Baton Rouge or elsewhere in Louisiana may be worth. These limiting factors of damages in a personal injury claim can include:
- Medical malpractice: Louisiana Law specifies certain caps and limitations;
- Governmental Claims: Certain claims against local and state municipalities: Baton Rouge, Gonzales, Prairieville, Ascension, Livingston, Denham Springs, etc. and the State of Louisiana may be limited by statute;
- Available insurance: If you or the at-fault party have no insurance it is hard to collect any damages;
- Contributory negligence: If the accident was in part your fault, you might not be able to obtain that portion of your claim;
- Certain Admiralty or Maritime Limitation of Liability Claims;
- Hiring a Law Firm that is only interested in settling your case.
What Are Damages in a Personal Injury Claim?
Damages in a personal injury claim are intended to “make the plaintiff whole” after an injury. Sometimes it is not possible to make the plaintiff whole. It may be difficult to put a dollar figure on things like pain and suffering. Louisiana Law tries to put the injured person back in the position he or she would be had the injury not occurred.
An injured party should remember that their case may have a significant value, and it should often not be signed away only to settle for a ‘quick check.’ Also, a personal injury victim should remember that attorney’s fees come out of the damages in a personal injury claim.
Types of Damages
The types of damages that are available in a personal injury claim can vary depending on the kind of case and other limiting factors noted above. Bodily injury damages often include the following:
1. Compensation for the cost of medical bills
Often, a plaintiff must undergo testing and treatment. If so, or if the claimant received medical care such as hospital and nursing home stays, or even physical therapy, they must be included. However, an injured party should also consider future medical costs when calculating damages in a personal injury claim. Louisiana Law allows for the collection of future medical expenses.
The defendant must pay for the expenses of the medical bills, which can become quite expensive. In cases of brain injury, or paralysis, these sums can add up quickly. This fact is especially true in cases in which a plaintiff has become permanently disabled. The medical portion of damages includes every expense that the plaintiff has had to pay out over the course of receiving treatment. It should also factor in what the future costs will be to the plaintiff.
The InjuredGo.com Personal Injury Law Firm uses, when necessary, Rehabilitation and economic expert witnesses to determine what these future sums may be. Unless you can prove to a court – or the insurance company – what the expenses in the future will be, your chance of recovering them decreases. Expert testimony and reports help prove this element of damages.
Sometimes personal injury claimants must turn over some or all of this money to their health insurer if the health insurer has been paying the bills before a settlement or verdict. This maneuver is called subrogation. Often, an insurer places a medical lien on a claim by either intervention or a subrogation notice. This procedure is to ensure repayment when the defendant pays out for these medical costs. The InjuredGo.com Law Firm tries to get these sums reduced by negotiation with the medical providers to take less, so you get more.
2. Lost wages
Lost wages or lost income is often a large part of a personal injury claim. The elements of this item of damages include payment for any work that a claimant had to miss, both past, and future. If a victim received money for vacation days or sick time, they should still be able to recover the lost time.
Also, if a personal injury claimant has been made permanently unable to work due to the injury, then the lost wages that he or she would have earned over the course of a lifetime, or even the ability to work, may be required to be paid by the defendant.
To just ‘pick a number’ or take your current wages and say you can never work again is not very compelling to the insurance company or the court. To prove lost wages, often you need to hire an expert to write a report to detail what your losses are both in the past and future. This type of proof lets the insurer know that you are ready to go to court and is quite compelling.
3. Pain and suffering
This element of damages is a subjective one. Sometimes juries award huge sums of money for this category. The fear of a large award is what makes insurance companies want to settle a personal injury case. However, you should not sell your case short. The InjuredGo.com Law Firm will prepare your case precisely to itemize all damages. This itemization will help you get the maximum award possible.
It has been reported that some firms advertise to get clients, and then settle them out quickly, often for less money. When making an offer, insurance companies will often employ techniques like a “pain multiplier” to make a tender. Some insurance companies use programs, such as Colossus, to determine the value of a case. Typically, these values are low because the insurance company wants to settle for as little as possible.
4. Emotional distress
Many injuries have emotional ramifications on a personal injury victim. Emotional distress usually must be proven by psychiatric records and expert testimony. Be sure that your lawyer is willing to expend money on these types of experts to help you maximize your case.
5. Wrongful death
Wrongful death claims are often brought by the family members of personal injury victims who have been killed as a result of an accident. Often, this personal injury occurs because of someone else’s negligence, or by an intentional bad act. Under Louisiana Law, a family member must have the legal standing to bring a wrongful death action. Louisiana Law allows spouses to bring a wrongful death action. It also allows parents to bring an action on behalf of minor children. The rules regarding who after the spouse or parents of minor children are case dependant.
See our section on wrongful death for more information.
6. Loss of companionship/loss of consortium
A personal injury claimant may have a family member who is entitled to this item of damages. This action is for another person who has been altered in a significant way by the accident or injury. The policy of Louisiana Law is to compensate the family member for the loss of the relationship of the victim. A spouse of a personal injury victim in Louisiana might lose the ability to have an intimate relationship with the injured person. This example shows loss of consortium damages.
7. Bad Faith / Punitive Damages
Bad Faith damages are allowed in Louisiana for the misconduct of an insurance company in particular situations. Punitive damages are often authorized for the damages caused by an intoxicated driver. In Maritime and Admiralty Law, other instances of punitive damages may exist as well. Punitive, or Bad Faith damages, although paid to the injured plaintiff, are not intended to make the plaintiff whole. Instead, Louisiana Law tries to punish the defendant for wrongful behavior and to act as a deterrent for this behavior.
Economic vs. Non-Economic Damages
Categories of damages are divided into two different kinds: economic damages and non-economic damages.
Economic damages are those damages awarded as a direct result of an actual financial loss. For instance, medical bills and lost wages are both economic losses.
Non-economic damages are damages that you can’t necessarily point to some specific financial cost.
Pain and suffering and emotional distress are examples of non-economic damages.
The InjuredGo.com Personal Injury Law Firm and Attorney Ed Kramer want to help you. Contact us or call us at (225) 933-1500 for a free consultation.