In a personal injury claim, the plaintiff will generally allege a cause of action for negligence or that another party’s negligent conduct caused the accident and the plaintiff’s injuries. Like any other civil cause of action, negligence has certain elements that a plaintiff must prove by a preponderance of the evidence. These include proof that a defendant had a duty of care to the plaintiff, that it was breached and that the breach was the proximate cause of the injuries sustained by the plaintiff. Lastly, and in order to recover any compensation, a plaintiff must prove the element of damages.
In personal injury cases, there are two categories of damages—economic or special damages and noneconomic or general damages. To prove these damages and recover the most compensation for your injury, retain attorney Andrew Ritholz, a highly skilled and knowledgeable personal injury lawyer from Pasadena.
Special or Economic Damages
Special damages refer to losses that are directly attributable to the injury. These include the following:
You can collect compensation for your injuries even if you have no medical expenses but receiving medical care is strong evidence that you did suffer an injury as well as its extent. The total compensation that a jury or trier-of-fact will award, or that an insurance adjuster will offer in settlement, depends to at least some extent on the medical expenses related to your injuries though the nature of your injury is probably the more important factor. Medical expenses the cost of the following:
- Chiropractic care
- Physical therapy
- Diagnostic tests—x-rays, MRI, CT scan
- Wheelchair and prosthetic devices
- Counseling and psychological care
- Home nursing care
As a plaintiff, you are entitled to be awarded the reasonable amount of medical expenses expended. You are also entitled to future medical expenses for treatment such as surgery and its attendant costs if the physician can testify that such future care is more likely than not to be required and is medically and reasonably necessary.
Very often, if a plaintiff receives non-traditional care such as chiropractic, acupuncture, massage or herbal medications, a defense insurance adjuster or attorney will question its efficacy or necessity. Even traditional care may be suspect if you had a preexisting condition that may not have been affected or exacerbated by the new injury.
If a particular type of medical care is questioned or its amount, a defense insurance adjuster will have the care and amount reviewed by a medical doctor of its choosing. If there is litigation, defense counsel has a right to have you examined by its doctor of his or her choice. In either scenario, the physician will inevitably conclude:
- your injuries are exaggerated or questionable
- the medical care was not necessary
- the medical expenses are unreasonable or excessive
Your attorney can counter such assumptions by having your healthcare provider draft a report stating that the medical care was reasonably necessary and the expenses reasonable. The attorney can also attempt to refute the findings and conclusions of the insurance company’s physician in a deposition.
Another major type of special damages is lost earnings. You will need a physician to state in a report that the injuries you suffered were disabling and prevented you from substantially performing your job. This includes the results of tests to document the restrictions on your ability to lift a certain weight, limited range of motion, inability to walk or stand for certain periods and other limitations.
If there are cognitive injuries, then a neurologist or other specialist may have to testify and present clinical findings demonstrating any specific impairment that affects your ability to work or engage in routine daily activities. Once established, your attorney can obtain records from the employer to evidence your wages or salaries and dates missed from work. If you are unable to return to the kind of work you were doing or any work at all, a forensic economist can calculate your lost earning capacity and what your future wage loss will be.
If there is a wrongful death claim, a forensic economist can also calculate what the decedent would have earned over his/her working life along with the value of employment benefits such as health care, retirement, vacation and others.
This can be easily ascertained by having an adjuster assess the property damage or by looking at the Kelly Blue Book if the vehicle is a total loss to determine the replacement value.
Other Special Damages
Another type of special damages is that of household services. If you had to hire someone to clean the house, shop and deliver groceries, do laundry or cleaning, transport you or do any other type of routine household chore or task, then this may be included as well.
Also in a wrongful death case, the immediate family is entitled to funeral and burial expenses.
General or non-economic losses are subjective in nature. They include the following:
- pain and suffering
- diminution in quality of life
- disfigurement and scarring
- permanent physical or mental disability
- emotional trauma
- spousal claim for loss of consortium
- loss of the love, companionship, support and guidance of the decedent in a wrongful death case
Pain and suffering and your inability to engage in the activities you could do before your injury are not objectively quantifiable. But your attorney can show the nature and extent of your injury by the following:
- you suffer pain on a daily basis
- there are activities you can no longer perform including recreational and sexual
- your disfigurement causes you embarrassment and limits social interactions
- you suffer flashbacks, an inability to sleep or to drive a car without fear of an accident
- your cognitive abilities are impaired—affecting memory, emotions, senses and focus that interfere with work, school or driving a car
Evidence of your pain, disability or impairment are shown in medical reports and the comments of therapists and rehabilitation experts as well as from testimony from health care providers and your spouse about the effect the injuries have had on your quality of life. With this in the jury’s or claim adjuster’s mind, your attorney can suggest a dollar figure for your general damages, which may be supported by verdicts reached in past but similar cases.
Have highly experienced personal injury lawyer like Andrew Ritholz handle your claim from the beginning so that your damages can be properly documented and demonstrated. He can also ensure that your case is handled effectively and thoroughly so that you can obtain the most compensation possible for your case based on its facts and circumstances.