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, California 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.
The General Rule
The general rule in California is that when one is physically injured as a result of negligent or wrongful conduct of someone else, he or she should be compensated for all the injuries and detriment which have been caused. [California Civil Code § 3333.] 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.
There are also a number of special situations such as medical malpractice, elder abuse, and/or illegal drug dealership cases which may have their own separate rules which result in damage limitations or enhancements. Neither those cases, nor damage to one's reputation, deprivation of liberty, witnessing of another's injury or death or punitive damages are addressed in this article. Rather, this article pertains solely to the usual case in which one suffers bodily injury.
However, most health insurance contracts require reimbursement of the insurance company for those expenses once the plaintiff recovers them.
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, nurses and the like.
- 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, one need not even be employed at the time of injury to be entitled to recover for such a loss.
- Pain, suffering, and emotional distress - That pain, suffering and emotional distress which one suffers as a result of his or her injuries.
- A spouse's loss of consortium - The loss of care, comfort, society, sexual relations, and the like which is suffered as a result of a spouse having been injured.
- Miscellaneous losses - These include the value of the loss of the ability to perform tasks within the home; expenses related to lifestyle changes such as modifying an automobile so an injured party can drive or the cost of adding ramps to a home to make it liveable in light of the injuries which have been suffered; and, travel expenses to obtain medical treatment and diagnosis.
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; and, the suffering of damage must be reasonably certain in light of the proof which is offered. Further, a party who is injured has a duty to mitigate, or minimize, the damages which he or she suffers so far as one is 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 one 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 One's Medical Expenses
In addressing the recovery of medical expenses, one should remember that he or she is 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, one should include each of the following:
- Hospital expenses;
- Doctor's expenses;
- Nursing expenses;
- Physical therapy 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.
One who has been injured is to be awarded the reasonable value of those medical services that have been rendered. This is regardless of whether one has actually paid those bills or whether no bill has been sent at all. Even if an insurance company has paid the expenses, one is still entitled to recover those losses.
One should take special care to determine any obligation to reimburse a disability insurer, governmental agency, or other party which has paid those sums. Those sums will have to be repaid out of any recovery that is received.
Right to Recover for Loss of Income
One is also entitled to recover for the loss of earnings capacity which has been suffered. The emphasis here is on the loss of the ability to earn income, not merely an actual loss of earnings. Thus, although one may not have actually lost any earnings at all, such as in the case where one is not employed at the time of injury, one is still entitled to recover for the loss of the ability to earn income. Further, one is entitled to recover for the diminution in his or her ability to make a living, even if one 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 one is 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, one 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, one is entitled to take into account economic trends such as inflation, promotions and pay raises which one might reasonably anticipate receiving, as well as commissions, bonuses, tips, gratuities and the like. Where one's life is shortened, he or she is entitled to recover the earnings which would have been earned but for the shortened life expectancy. And, where an injury reduces one's physical or mental abilities so as to be unable to take advantage of likely advancements in the way of promotions or alternative job opportunities, he or she is 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 one to recover the loss of both the past and future income which has resulted. In performing such a calculation, one should be certain to include the loss of retirement credits, insurance benefits, sick leave and vacation leave, as well as any other benefits which one reasonably would have anticipated receiving. Where one receives 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 Pain, Suffering and Emotional Distress
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, the courts have held that the failure to compensate a party for this element can render an award inadequate as a matter of law. There are no fixed standards by which to assess such an award and it is left to the sound discretion of the judge and 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:
- Loss of enjoyment of life;
- Sleep difficulties;
- Inconvenience; and,
Right to Recover for Loss of Consortium
Where one's spouse has been injured, he or she is entitled to recover for the loss of consortium which has been sustained. This component of damage includes the loss of love, companionship, comfort, affection, society, sexual relations, ability to have children, solace, support, services, moral support, and physical assistance in the operation and maintenance of the home. Once again, such an award is left to the sound discretion of the judge and jury. It is to be reasonable in amount and to include that loss which has been suffered to date and that which is reasonably certain to be suffered in the future.
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 "miscellaneous" items which should also be kept in mind for a calculation of damages. These include:
- 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. One is entitled to reasonable compensation for this loss as well.
- 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.
- Where one is unable to do 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.
- One is also entitled to recover for the aggravation of a pre-existing condition. By way of example, where one has hurt his or her back prior to the incident in which injuries are claimed, one is entitled to recover for the worsening of that condition. While one is not allowed to recover for what would have occurred regardless, one does have a right to recover for the period of time that such injury was worsened. In other words, if one's condition has been made worse, or if degeneration of the body has been sped up by the injury, one is entitled to recover for the loss which is the result of such an aggravation.
The calculation of what one is 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. An attorney will be able to provide a potential range of recovery based on their experience and research of jury awards. However, bear in mind any award is uncertain. Juries can and do decide that your case is worth nothing. It all depends on the injuries sustained and the facts of the case.