To successfully negotiate a bodily injury settlement, you must first understand how to evaluate your injuries and set their values. Medical bills, pain and suffering, and loss of enjoyment of life are all critical aspects of putting together a comprehensive bodily injury settlement request.
Value estimation can be difficult at times. Few individuals know how to calculate pain and suffering damages, and loss of enjoyment of life can also be a bit complicated when trying to attach a tangible dollar amount to its name. On top of this, medical expenses are neither exempt nor immune to inflation. Every year, medical costs increase, which means that settlement demands will increase as well. Because of this, settlement demands and offers have changed in recent years. Statistics show that American medical costs have increased by over 5000% since 1935, and today, the average per day hospital cost in America is roughly $2,607.
If you’ve suffered bodily injury, you need to know how to proceed. In this blog, we’ll explain the 7 categories of bodily injury damages, how to evaluate your bodily injury claim, and how to evaluate your physical capacities once it is time to begin negotiating.
- Categories of Bodily Injury Damages
- How To Evaluate a Bodily Injury Claim
- Physical Capacities Evaluation
Categories of Bodily Injury Damages
There are seven key elements that play a part in nearly every bodily injury damage case.
Current damages typically consist of the victim’s current medical expenses, current lost wages, and other current general damages such as current medical expenses and lost wages.
Future damages typically consist of future medical expenses, future lost wages (or diminished earning capacity), and future general damages. When making an estimate for future general damages, claimants and their lawyers typically attempt to set a value on the victim’s ongoing pain and suffering that cannot be alleviated via rehabilitation or therapy.
Keep in mind that future surgeries and medical treatments need to be kept in mind when setting a value for your future damages. If you feel it is likely that you will need additional medical attention over the next few years, the costs of your treatments and surgeries need to be taken into consideration when putting together your personal injury claim. Far too many claimants become so preoccupied with recovering their future lost wages and general damages, and even though this is important, out-of-pocket surgery costs can be an absolute nightmare to deal with.
Rehabilitation damages consist of the costs associated with any sort of training or rehabilitation an injured victim will need to make a recovery. Rehabilitation damages typically consist of physical rehab, psychological treatment, and any miscellaneous vocational trainings the claimant may need to complete before returning to work.
In layman’s terms, punitive damages are considered to be punishments for acting in bad faith. In a court of law, if a defendant has shown particularly harmful behavior throughout the trial, the court has the ability to add punitive damages to the final payout.
The standards and laws surrounding punitive damages in America have undergone considerable changes since the State Farm Mutual Auto Ins. Co. v. Campbell case in 2003. Prior to this case, the net worth of the defendant would play a key role in determining the amount of punitive damages they were forced to pay out. Today, the U.S. Supreme Court has shown reluctance to award more than a single digit multiplier based on the defendant’s net worth, regardless of how wrong their behavior was or how high their net worth may be.
Loss of Enjoyment of Life
This is an important category that deals with the victim’s diminished lifestyle as a direct result of their injuries. If an injury victim makes a “full recovery” but still has issues functioning as they did prior to their accident, then they may be able to submit a loss of enjoyment of life damage claim. Loss of enjoyment of life claims are common amongst individuals who suffer from arm/leg amputation, PTSD, loss of vision, or severe facial burning.
Loss of inheritance is a very distinct category. Simply put, individuals can attempt to seek compensation if they feel they have been cheated out of potential financial inheritance as result of a wrongful death. For example, if a woman was set to inherit $500,000 from her parents but was wrongfully killed before she could receive it, her surviving husband could seek to recoup these losses in the form of a loss of inheritance claim.
Loss of Consortium
Loss of consortium highlights the many mental and emotional struggles that come along with losing a loved one. If you are the survivor of a wrongful death case and you feel as though you have been deprived of companionship as a result of the incident, you may be entitled to compensation.
Loss of consortium can be a bit difficult to evaluate. Consortium is extremely abstract, and many of the factors that play a part in determining the value of a consortium case are psychological and invisible to the naked eye. Loss of security, discomfort, feelings of distress, feelings of worthlessness, and a desire for positive behavioral reinforcement are all common problems that survivors go through every single day. Because of this, many feel as though they are entitled to compensation, and in certain instances, you ma be able to successfully procure this.
Placing a value on this type of loss can be extremely difficult. There is no service or product that can replace a life, which means it can be hard to determine a “market price” for your pain and suffering. If you plan on seeking compensation for your loss of consortium, it is in your best interest to work closely with a Houston wrongful death lawyer who has experience working with similar situations.
How to Evaluate a Bodily Injury Claim
Many personal injury claims deal with the similar injuries, such as soft tissue damages, bone breaks, and sprained ligaments. Because of this, many claims adjusters fail to realize that each case is unique. Insurance companies tend to also forget the pain and suffering that human beings go through when experiencing these extremely painful injuries.
Legal Liability of the Defendant
The first step in evaluating any bodily injury claim is to determine the liability of the defendant. Understanding the ins and outs of a defendant’s negligence is essential to determining how “at-fault” they are, which will have a direct impact on your settlement amount or recovery.
Sometimes, the defendant may dispute their negligence and claim they are not the legal cause of the accident and ensuing injuries. When this happens, it is time for you to establish your credibility.
Coming across as uninformed, dishonest, unintelligent, or unlikeable can greatly reduce the value of your case. The plaintiff’s testimony can have a huge effect on their case, and the judge and jury will be carefully listening as you share your story. Many plaintiffs hire jury consultants, experts who provide feedback on how plaintiffs can boost their credibility and presentation in a court of law.
Establishing the Quality of the Plaintiff’s Expert
Establishing the credibility of the plaintiff’s doctor is an essential step. The ideal doctor should have some sort of experience testifying at trials or depositions, but if they do not have such experience, it is recommended they meet with trial counsel and the jury consultant to go over the medical-related case details.
Defense lawyers will be quick to attack the credibility of your expert, which is why it is so important to do your due diligence before choosing a physician. Be prepared for the defendant to attack your expert’s scope of expertise, experience, intellect, and character.
In general, defendants are only legally liable to pay for the injuries that are caused by them. Because of this, they will be quick to claim that certain physical ailments were pre-existing and not caused by their negligence.
When it is time to establish any pre-existing injuries, make sure you have all independent medical reports on hand. In addition to this, make sure the defendant is not attempting to undermine or exaggerate any of your injuries.
Accounting issues can come into play when they are two or more defendants. If you have two guilty parties who are fighting over who has to pay what, it is in the plaintiff’s best interest to account for all their injuries as one and divide the total number of defendants into the total settlement value of their claims.
This is typically seen as the easiest way to determine obligations for injuries that have been caused by multiple defendants. However, defense lawyers will not feel as though their client should have to pay an equal amount in damages if they did not commit 50% of the injury and property damage.
Current and Future Medical Expenses
As stated before, all medical expenses need to be accounted for. Below is a sample list consisting of some of the most common medical expenses we see during personal injury cases.
- Ambulance bills
- X-ray fees
- Surgery costs
- Emergency medical costs (overnight hospital stay, medical supplies, etc.)
- Doctor’s visits
- Counseling sessions
- CAT scans and/or MRIs
- Prosthetic devices (crutches, braces, prosthetic limbs, etc.)
- Transportation costs (car rentals, taxi, Metro, Uber, Lyft, etc.)
- Live-in nurse/caretaker expenses
- Prescription medications
- Medical bandages
Your general damages are typically seen as the value placed on your pain and suffering.
Projected Lost Wages
Your future lost wages must be accounted for if you hope to make a full recovery from your personal injury.
To begin fighting for your future lost wages, you will need to secure a written document from your employer stating your monthly or annual earnings as well as your projected income increases had you stayed employed and injury-free. If you are self-employed, a document from your CPA is typically sufficient. The document should also include your potential for promotion or financial advancement as of the date of your injury.
Next, you will need to secure a narrative medical report from your practitioner. This piece of information should state how long it will take for you to recover from your injury, and how long it will take before you are able to return to your field of work.
Remain wary of the defendant’s actions and behaviors at all times. If they are behaving in any sort of malicious, fraudulent, or oppressive manners, you may be able to submit a claim for punitive damages.
Punitive damages are put in place to punish defendants who demonstrate especially harmful or deplorable behavior to a plaintiff. In general, when a general verdict takes place, juries are allowed to add a sum of money that compensates the plaintiff. Also, because punitive damages are essentially a punishment, judges and juries may force a defendant to pay a higher amount if they have a history of similar behavior. For example, if a previous plaintiff was awarded $25,000 due to your defendant’s harmful behavior and they repeat the same actions during your case, the jury may decide to exponentially increase the payout amount in an attempt to deter the defendant from ever behaving like this again.
Juries typically calculate punitive damages by determining the degree of actual harm sustained by the plaintiff, as well as the nature of the actions.
Loss of Enjoyment of Life
Keep in mind that loss of enjoyment of life damages are different from pain and suffering damages. When you are attempting to recover from loss of enjoyment or life, you are trying to seek compensation for your deprivation, impairment or inability to engage in certain activities that you regularly enjoyed before your accident.
Loss of enjoyment of life damages can stem from bodily injuries as well as property damage. For example, if a victim is a property owner who has suffered from a contaminated water supply as a result of the negligence of a nearby manufacturing plant, the claimant may be able to be compensated for the property damage of their groundwater and soils. In addition to this, the claimant may be able to receive loss fo enjoyment compensation because they are not able to use their property as they once were able to. Watering the lawn, swimming in the pool, and feeding their animals are all tasks they will struggle with now.
Physical Capacities Evaluation
Victims and claimants are commonly curious about how they can convey their pain and suffering damages to the insurance company they are dealing with. The discomforts and inconveniences that come along with serious injury can be extremely debilitating, and because of this, you have every right to do what it takes to receive your rightful compensation.
Be sure to record your pain and injuries before and after being examined by a physician after your accident. Doing this can help you and your attorney paint a clear picture that shows your loss of physical capacity. In addition to this, it can also help you if you ever need to apply for disability income or benefits.
Always check your local laws surrounding limitations on pain and suffering damages related to vehicle accident cases. For example, in the state of California, convicted drunk drivers and uninsured motorists are exempt from collecting damages from their alleged pain and suffering damages.
If you are in the middle of a deposition or trial, here are some key points to remember in order to give yourself a favorable chance at recovering from your pain and suffering.
Credibility – Your first and utmost objective at all times is to maintain your credibility in a court of law. The judge and jury are listening closely, and they will not hesitate to verify your claims. Because of this, you must always remain honest, transparent, and articulate.
Check Lists – Depending on the type of injury you have been involved in, you may have several different types of damages you need to recover from. If so, make sure you keep track of each type. The last thing you want to do is lose out on life-changing recoveries because of simple, preventable oversights.
Current Medical Expenses – As a claimant, you need to make sure you keep records of each and every single medical bill you endure as a result of your injury. Any sort of surgery, hospital stay, rehabilitation session, or counseling visit should be accounted for in your medical expenses.
Current Lost Wages – Current lost wages can quickly add up, which is why it is so important you carefully calculate these in order to add them to your settlement. Take a moment and think about your livelihood. Had you not been injured, how much money would have earned via wages and other miscellaneous profit/business ventures?
Future Medical Expenses – Any and all medical expenses you incur after the date of your settlement or verdict should be accounted for when negotiating with the defense.
Future General Damages – Even after being physically healed, many victims deal with future health complications that diminish their quality of life. If this sounds like your situation, you must be able to prove that you will incur “residuals” from your injury and continue to combat medical problems after the date of your settlement or verdict.
Future Lost Wages of Income – At times, plaintiffs may settle their case or receive a verdict prior to making a complete recovery from their injuries. When this happens, make sure your settlement or recovery accounts for the future time you will need to take off work. Many claimants and their attorneys consult with economists to project what wages, fees and business ventures the victim will lose as a direct result of their injury recovery.
Vocational/Professional Rehabilitation Expenses – Vocational and professional rehabilitation expenses must be taken account for when determining how much you are seeking in loss of enjoyment damages. At times, these expenses are incurred prior to the date of your settlement or verdict, but depending on your situation, you may need a lifetime of rehabilitation. Be sure to fight for your future rehabilitation expenses if you believe you will be in need of rehab for the rest of your life.
Punitive Damages – If you have determined the defendant to be outrageously harmful in their behavior or conduct, then you may be able to sue for punitive damages. If so, do your research and make sure that such punitive damage recovery will be covered under any applicable insurance policies.
Last but not least, remember that loss of enjoyment of life damages are applicable to bodily injury, property, AND nuisance claims. If you are unable to function substantially to the same degree after your accident, it may not always be because of a severe injury, and may not always be because of a severe damage in your property. Loss of enjoyment of life damages can be triggered by multiple things; do not hesitate to demand compensation if you lose access to the life you know and love.
Pusch & Nguyen | Houston Accident Injury Lawyers
Settling a case with an insurance company is very rarely an easy or straightforward process. You will have to deal with numerous bad faith tactics they throw out on any given day, and on top of this, you will have to study personal injury law inside and out in order to know enough to enter a court of law without being completely embarrassed by your opposition.
We understand how hard it can be to receive a settlement or recovery after experiencing a tragic accident such as a wrongful death or car accident injury. At the Pusch & Nguyen Law Firm, we work diligently with Texans who have suffered from auto accidents, 18-wheeler accidents, product liability, and many other forms of personal injury. Our trial lawyers have experience winning cases against major American corporations, and we promise to always do what it takes to provide you with quality legal counsel. For more information on how we can help your case, contact us today at 713-524-8139 to schedule a free consultation.