The “value” of a personal injury claim is determined by the damages it can yield. Damages are the means of redressing the plaintiff’s injuries. This redress is accomplished by establishing a monetary amount that fairly compensates the injuries and losses a plaintiff has suffered or will likely suffer. There are two types of damages: compensatory and punitive. Compensatory damages are broken down into economic and non-economic damages. These types of damages are unique, and each is discussed below.
Compensatory damages exist to compensate the plaintiff for the injury suffered. The first type of compensatory damages are economic damages. These are the most obvious type of damages, as they compensate the injured plaintiff for actual, monetary expenses resulting from the injury. These damages are generally awarded dollar for dollar based upon the actual expenses of the plaintiff, since they are already in the form of a dollar amount. Common types of expenses include medical bills, lost wages, medications, and property damage, such as damage to a vehicle. These expenses may be already paid, currently outstanding, or anticipated costs for the future. One expense which is not included in these damages are attorney’s fees. Thus, the defendant will not be required to pay for the plaintiff’s attorney and the jury may not consider the cost of the attorney’s services in determining damages.
Non-economic damages are more difficult to predict and boil down to a dollar amount. These damages compensate a plaintiff for the “ordeal” of being injured. This includes humiliation, embarrassment, time lost recovering for the injury, stress placed on the plaintiff, and pain suffered from the injury and recovery. Because these types of loss are not easily converted to dollar amounts, they must be estimate using past verdicts for similar injuries and the experience of the attorney.
Unlike compensatory damages, punitive damages are awarded by looking at the defendant, rather than the loss of the plaintiff. This is because punitive damages are meant to punish the defendant, rather than redress the plaintiff’s injuries. Thus, punitive damages are not awarded in all cases. In Gould v. Taco Bell, the Kansas Supreme Court stated these damages are reserved for cases in which the defendant is “malicious, vindictive, or wanton.” Punitive damages may never exceed $5 million, and additionally cannot exceed the defendant’s annual gross income pursuant to Section 60-3701. The nature of most personal injury claims will not support even the request of punitive damages, but they are available when truly egregious situations exist.
Determining Medical Expenses
Every personal injury claim will seek medical expenses as a portion of the economic damages suffered. Medical expenses can be established in a number of ways. The most common are through medical records and itemized bills, or opinions of treating doctors. One common concern is whether a plaintiff is entitled to the full cost of the medical treatment or only the portion actually paid by the plaintiff (such as a deductible for an insured plaintiff). The answer is somewhere in the middle. A plaintiff is entitled to the reasonable value of the medical treatments. In Martinez v. Milburn Enterprises, Inc., the court determined that a defendant can show a jury the reduced amount accepted by healthcare providers in addition to the amount billed. The jury is then allowed to determine what it believes the reasonable value to be. The fact that a defendant is insured is not disclosed to the jury, however.
Gathering medical records takes time and costs money. Early on after agreeing to represent a client, an attorney will ask the client to sign a waiver allowing hospitals and doctors to release medical records and bills to the firm. This waiver is used to notify the custodian of these records that they may be released without violating the Health Insurance Portability and Accountability Act, or HIPAA. It may take several months for these records to be delivered to the attorney’s office, and the records will often be hundreds of pages for the treatment of a single injury. The attorney must then sort through the records and bills to determine what treatment and costs are attributable to the accident. These records will be used to support settlement demands and possibly even as evidence if the case goes to trial.
An attorney may also meet with the doctors that treated the injured plaintiff. In these meetings, doctors can explain why treatment is related and how they draw the conclusions that it is related. The doctor can also explain what future medical treatment a plaintiff may need as a result of the injuries. Since doctors bill for medical services, they may also explain the reasonable value of future or present medical services. Commonly, after meeting with a treating physician, the attorney will request that the information discussed be written in the form of a medical opinion. This opinion will be used just as medical records and bills are, and may even be introduced at trial. More often, however, the doctor will be called to testify at trial. The doctor may even be deposed—asked questions under oath outside of trial—by the attorneys for each party.
Determining Non-Economic Losses
Determining non-economic losses suffered by a plaintiff can be a difficult part of a personal injury claim. Most often, an attorney will interview the plaintiff directly about how life has changed following the injury. These questions will be of a very personal nature, often dealing with relationships between the plaintiff and family, as well as depression and disappointment the plaintiff has faced. Though it is unpleasant to discuss, a plaintiff must be extremely honest answering these questions. An attorney cannot present these losses in a settlement offer or to a jury if the plaintiff is not honest about them. And if they are not included in resolving the claim, the plaintiff will not receive full redress for the losses suffered; the recovery will be incomplete.
To further ensure that all losses are accounted for, an attorney will likely interview friends and family members of the plaintiff. Often these individuals will be more forth coming about changes they have noticed in the plaintiff, such as becoming more reclusive or refraining from activities the plaintiff formerly loved. These changes are direct losses stemming from the injury, and they rightfully should be redressed by the defendant. Talking with those who know the plaintiff best, and can compare behavior pre- and post-accident, can provide strong evidence of how the injury affected him or her. These parties may sign sworn statements or even testify at trial to support non-economic damages.
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