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What Types of Damages Can You Get in a Personal Injury Case?

Posted March 13, 2018

By Jonathan A. Karon

Successful personal injury plaintiffs are entitled to be compensated for three types of losses: medical expenses; loss of earning capacity; and pain and suffering. Here’s an explanation of what’s included in each category of damages.

Recoverable medical expenses are those that were incurred in a good faith effort to treat the injuries caused by the defendant’s negligence. They can include future medical expenses if there is evidence that the plaintiff will probably require the treatment in the future. In Massachusetts the plaintiff is entitled to be compensated for medical expenses even if they were paid by health insurance. There are two good reasons for this rule. The first is that plaintiffs are usually required to pay back, from any settlement or judgment, the amount of medical bills paid by the health insurer. The second is what is known in the law as the “collateral source rule.” This is a policy choice that someone who is negligent and causes injury should not get a discount on their responsibility for the harm they caused, simply because they were lucky enough to injure someone with insurance.

The second type of loss that is recoverable is loss of earning capacity. In Massachusetts, loss of earning capacity is not the same as out of pocket lost wages. Instead, it is the decrease in the plaintiff’s ability to earn caused by the injury. Although the most common way to measure this is by multiplying the time that the plaintiff was out of work by their rate of pay, this is not the only way. In some cases other calculations may be a more accurate measure. For example, if the plaintiff has a permanent injury that restricts the jobs they can do, a more accurate measure could be the difference between what they would have been able to earn in the future if they had not been injured and what they are now likely to earn. For example, suppose a minor league ballplayer suffers a permanent knee injury. They may be able to return to playing baseball, but now they will no longer be promoted to the Red Sox. Their loss of earning capacity would be what they would have made playing at Fenway Park, not the time they missed playing in the minors. Since loss of earning capacity compensates loss of the ability to earn rather than out of pocket loss wages, a plaintiff is entitled to recover even if their employer paid them for the time they missed.

The third type of loss is known as “pain and suffering”. It is compensation for both the physical pain and the emotional distress caused by the injury. It includes not just past pain and emotional distress but that likely to be suffered in the future. Pain and suffering includes all the ways that someone’s life is made worse because of their injuries. If you’re on crutches for a few months, that’s part of your pain and suffering. If you have a permanent injury and have to give up a favorite hobby, that’s part of your pain and suffering. One client had a permanent shoulder injury and had problems cooking for her family or picking up her grandchild. Another client lost their social skills as a result of a severe traumatic brain injury. There are no specific formulas for calculating what’s reasonable compensation for pain and suffering. If the case goes to trial, it’s ultimately up to the jury to assess what is fair compensation for this loss.

Many people have problems awarding damages for pain and suffering. Although they have no problem compensating plaintiffs for their medical bills or lost earnings, they believe there’s something illegitimate about allowing money for pain and suffering.  I wish these people understood that for almost all of my clients, the biggest loss they suffer is the effect of their injuries on their life, not their medical bills or lost earnings. They would gladly trade the amount of any judgment or settlement in exchange for not being injured in the first place. Since that is not possible, the law says we should try to “balance the scales” by awarding a sum of money that fairly compensates them for these real losses. This also encourages safety by forcing the careless and the callous to pay for the full costs of the injuries they cause.

The spouse of an injured person may also have their own separate claim for what’s called “loss of consortium”. In a future blog post, I’ll explain what that is.  You should also  note that although I have discussed the specific law of damages in Massachusetts, most other states allow these types of damages, although there are differences in how they are calculated or precisely what is included.


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