What damages can I recover in a personal injury case?
Typically, the damages available in a personal injury case include: medical expenses, property damage, pain and suffering, mental anguish, disfigurement, loss of earning capacity, and loss of household services. In addition, wrongful death claimants may also be able to seek compensation for: funeral expenses, loss of companionship, loss of society, and loss of inheritance. At Simmons and Fletcher, P.C., we regularly work with medical, economic and life care planning experts to help people determine and prove the full extent of their damages.
Past Medical Expenses
You are entitled to recover those past medical expenses that a jury determines were reasonable and necessary as a result of the injury sustained. This does not mean you automatically get every bill that happens after the date of the accident. The plaintiff must prove the accident was the proximate cause of the injuries necessitating the care and that the care was medically necessary. Insurance companies often chose this as a battleground for personal injury cases. By hiring a conservative and often nit-picky medical evaluator as an expert, defense attorneys and the insurance companies behind them can attack an injured persons care and argue to the jury that the person simply “over treated.” If the argument sells, it saves them money to the detriment of the injured party.
Future Medical Expenses
You are also entitled to recover future medical expenses that a qualified medical expert opines will be required within reasonable medical probability. Often injured persons find themselves without a way to pay for an expensive medical or surgical procedure they need and they have to wait for the resolution of their personal injury case to get it. Your own health insurance learns that the injury was caused by an accident due to the negligence of someone else and they start denying medical claims on grounds that health insurance policies are, by contract, secondary insurance to third-party liability insurance such as auto, homeowners and commercial liability policies. The liability policies deny and delay payment, leaving you, the injured victim, with no way to get care you need. Thus, you must ask the jury to award the money for the future care you need. This requires hiring and paying a medical expert to give expert testimony regarding the necessity of the future care. At Simmons and Fletcher, P.C., we can help you get the medical care you need and the compensation you deserve.
Property Damage and Diminution In Value
Under Texas law, you are entitled to recover either the repair cost of your vehicle or the fair market value of your vehicle immediately before the collision minus the fair market value immediately after the collision. Generally, this is determined using the NADA guidelines for most non-collector cars.
Diminution in value is the reduction in value of a vehicle after it has been repaired. In newer model vehicles, a repair may make it look aesthetically the same,but that doesn’t mean it drives the same. People know this. Its why people request a car fax on a used vehicle. When you go to resell a wrecked vehicle, often the value you are offered by a dealer will be less when they realize it was in a wreck. That difference in the value that they offer is the vehicle’s diminution in value. it generally requires expert testimony to establish and thus, must be significant to justify pursuing in litigation.
Pain and Suffering
Pain and suffering is an award of damages for the physical pain that you experience due to an injury. It is an intangible damage–It cannot be measured by any objective test or study. The amount a jury chooses to award or not award for pain and suffering is largely discretionary. There is no such thing as a pain and suffering calculator.
In a soft tissue or minor whiplash case, they can chose to award zero for pain and suffering. In a hard injury such as a broken bone or herniated disk, they cannot award zero if they find there was in fact an injury necessitating the medical care of the injuries. They can, however, award a nominal amount.
You may ask for an award of pain and suffering incurred in the past as well as future pain and suffering if you have evidence to support each. Medical expert testimony can also be invaluable in establishing the amount and duration of future pain and suffering you are, in reasonable medical probability, likely to endure.
Mental anguish is the anxiety, depression and emotional suffering resulting from an injury. You can recover mental anguish from the past as well as in the future if it is within reasonable medical probability and likely to occur. In order for it to reach a “compensable level,” the Texas Supreme Court has held that the plaintiff must prove that he “suffered a substantial disruption in daily routine or a high degree of mental pain and distress.” See Hancock v. Variyam, 400 S.W.3d 59, 62 (Tex. 2013). The plaintiff needs to also prove the nature, duration, and severity of the mental anguish for it to withstand appeal.
Because of the elusive nature of mental anguish, it is wise to seek a jury damage finding on each specific element of damages when one is seeking mental anguish. That way if the Court of Appeals decides there is not sufficient evidence to support the element of mental anguish damages, they can carve out that part of the recovery rather than tossing out the entire recovery and making you retry the case. For more information on this see: What is Mental Anguish?
Loss of Earning Capacity
Loss of earning capacity refers to the loss of income, wages or earning capacity suffered as a result of an accident. Depending on the type of job you hold and your injuries, this can be a simple claim for past wages lost or it may be a very complex case for lost future earning ability. If you are paid by the hour or a biweekly salary, you can calculate past lost earnings by breaking down hourly earnings and comparing it to time taken off. For contractors and people in business for themselves, calculating past and future wage loss claims can require economic expert witness testimony. When a self-employed person does different jobs that pay different amounts and have different costs associated with them, determining what jobs were missed out on may require evaluating a past earning history to determine average expected earnings over time as well as analysis of relevant market forces. It is highly important that you have an attorney with the knowledge to determine the best way to calculate your economic losses and the expert witness resources to prove the case.
Loss of Household Services
Loss of household services is an element of damages that allows you to recover when a spouse is injured and is no longer able to perform their normal household services. Texas law defines household services as “those that a husband or wife performs around the home and in caring for the family.” Dallas Ry. & Terminal Co. v. Sutherland, 27 S.W.2d 830 (Tex.Civ.App.—El Paso 1930, writ dismissed w.o.j.). If your loved one has sustained injuries that prevent you from performing household services, the law allows you to introduce evidence of the reasonable replacement cost of those services. Calculating some costs such as the cost of hiring someone to mow the lawn are not as difficult to establish as the future cost of cleaning ones house or doing repairs. The latter may require expert witness testimony.
Loss of Consortium
Loss of consortium is the loss of companionship and society that occurs in certain family relationships when there has been a death or significant injury to one party to the relationship. It concerns husbands and wives or parents and children. Between spouses it encompasses the loss in marital relations, the loss of love, affection, comfort, companionship, solace, society, assistance, sexual relations, and emotional support. The claim belongs to the non-injured spouse. Between parents and children it is a claim for the loss of love, support, encouragement, instruction, guidance that the parent would have been able to provide absent the catastrophic injury or death. For a child to recover, the parents injury must be “serious, permanent and disabling.”
Texas law does not recognize loss of consortium claims for all family members. The parents have no claim for loss of consortium when a child is injured or killed. Additionally, the claim does not extend to cover siblings, cousins or distant family relations. These claims are very complex and require the aid of a personal injury attorney to prosecute them.
If you would like more information about damages available in a personal injury case, give us a call at (713) 932-0777.
Additional reading on damages:
- What costs cannot be recovered in a personal injury case?
- Aggravation of a preexisting condition.
- What are punitive damages?
Paul Cannon has practiced personal injury trial law since 1995. He is Board Certified in Personal Injury Trial Law (2005). He has earned recognition as a Super Lawyer by Thompson Reuters in 2017 & 2018, and as a Top 100 Trial Lawyer by the National Trial Lawyers Association in 2017. He is a Shareholder, trial lawyer and online marketing manager at Simmons and Fletcher, P.C. His legal writings have been published by the Texas Bar Journal, Business.com, Lawyer.com HG Legal Resources, Lawfirms.com, and others. He has been asked to give education talks and media interviews on dog bite law.