Background of Personal Injury & Personal Injury Damages
We hear the term “Personal Injury” a lot these days. Television and radio ads for law firms use the term when they are encouraging you to use their services. What is it, really, that they are talking about?
A personal injury is just that – an injury to the person’s body, mind or emotions. This sounds easy to comprehend, but there are quite a number of variations of personal injury cases.
Historically, the concept of compensating those you may have injured, even accidentally, has been in our consciousness for a very long time. The concept of “an eye for an eye” from the Code of Hammurabi, (a Mesopotamian king who ruled the Babylonian Empire from 1792-50 B.C.) was not so much a blueprint for revenge as it was a way to compensate one who had been injured at the hands of another. In those days they took compensation in like kind, now we take it in the form of money damages.
Many, Many Types of Personal Injuries
Often the first thing one thinks about when they hear the phrase “personal injury” is a vehicle accident injury. This is perhaps the most common type of injury that is litigated, but this is by no means the only source of personal injuries.
Other types of personal injuries are those conditions that arise from a defective medical device, or the side effects from a drug. Medical malpractice can cause other types of personal injuries, such as requiring more surgeries or not properly treating a condition that gets worse as a result.
Unsafe conditions on someone else’s property can cause injuries, such as a slip and fall which causes back problems or broken bones. If there is negligent security in a place of business which provides a setting for a crime and someone is injured, it is considered a personal injury case. Injuries on cruise ships can be personal injury cases, or a dog bite. Nursing home abuse and neglect cases are essentially personal injury matters. There are many more examples of what can cause personal injuries, but you get the idea!
The law provides for compensation to the injured party if the injury was the result of another’s negligence or intentional acts. We talked about the negligence aspect of the law in a previous article, but the essence of negligence is that someone had a duty (to drive carefully, to keep their property in a safe condition, to perform medical services in a proper manner etc.); they breached that duty (didn’t do any of those things) and because of that action or inaction, someone was hurt. These are the elements that must be present to prove a personal injury case.
How Does It Work?
Typically after one has suffered an injury, if they think it is the fault of someone else, they consult with an attorney to pursue their case. They sign a retainer agreement which states what the attorney will do and how they will get paid. The most common method of payment for personal injury cases is a contingency fee, which means the amount the attorney is paid depends on the amount of the settlement or jury award.
Usually the insurance company for the defendant provides an attorney for the defense, so you need an attorney who is skilled not only in trial techniques, but settlement negotiation with the insurance company.
What Are “Damages?”
Damages are what your injury has cost you financially, physically and mentally. If you are suing the person or company responsible for your injury, these are the things for which you want them to pay.
Medical expenses are definitely one type of damages asked for in a personal injury lawsuit. The cost of medical care should be paid by the one who caused the injury. Often future medical expenses are requested because the cost of treatment will be ongoing. If you need care at home as a result of the injury, then that amount can be requested. Rehabilitative care, accommodations to the home, medical equipment or devices are all included under the umbrella of medical expense damages.
Lost wages due to the injury are another type of damages. A claim for lost wages can be the past wages for time you couldn’t work due to your injury, and it can also be for future wages if you are not able to ever work again (or for a long time) because of a catastrophic injury. These types of claims can also include amounts for retraining or re-education if the injured person can no longer work at their previous job.
Amounts for pain and suffering are another type of damages at issue in a lawsuit. Unlike medical expenses and lost wages, these amounts are less quantifiable and subject to a jury’s impression. These are considered non-economic damages because they are not quantifiable out-of –pocket damages. The Florida legislature attempted to limit the amount of pain and suffering damages that could be awarded in a medical malpractice case, but that law was recently struck down by the Florida Supreme Court as unconstitutional.
Loss of consortium is another claim for damages. This is compensation for the deprivation of family benefits due to the injury. It is a claim brought by the spouse or children of an injured person. For a spouse this means the loss of services, comfort, society and attentions of the spouse, including the marital sexual relationship. For the children this means a loss of the love and affection and attention of the injured parent.
Finally, punitive damages may be available if the injury was caused intentionally or as a result of gross negligence. These damages serve to punish the defendant’s behavior and deter future similar actions. Punitive damages are not available in most personal injury cases, but an experienced personal injury attorney can analyze the facts of your situation to determine whether they might be appropriate.
If you have been injured, having the right attorney can make all the difference in your personal injury case. You need to have an advocate that will zealously pursue your rights and obtain the best result for you. A skilled personal injury attorney will be able to evaluate your case and help you determine the best path for your situation.