STEP 5 - DETERMINE THE DAMAGES
A personal injury claim’s “value” is determined by the amount of damages it could potentially bring. Damages are defined as the means by which a plaintiff is redressed for his or her injury. Redressing the plaintiff is done by creating a monetary amount that properly compensates the injuries and losses a plaintiff has suffered or will likely suffer. Damages are divided into two categories: compensatory and punitive. Furthermore, compensatory damages are divided into economic and non-economic damages. These types of damages are discussed below.
The purpose of compensatory damages are to compensate the plaintiff for the injuries he or she suffered. Economic damages compensate the injured plaintiff for actual, monetary damages resulting from the injury. Generally, economic damages are awarded dollar for dollar and are based upon the actual expenses of the plaintiff. Typical expenses include: medical bills, medications, property damages and lost wages. These types of expenses may be already paid, currently due or anticipated costs for the future. With this in mind, attorney fees are not included in economic damages. Therefore, the defendant is not responsible for paying the plaintiff attorney’s fees and the jury is not able to consider attorney’s fees in determining the total damage amount.
Determining a dollar amount for non-economic damages is difficult because non-economic damages compensate a plaintiff for having to go through the injury. For example, common non-economic damages include: humiliation, embarrassment, stress placed on the plaintiff as a result of the injury, time lost recovering from the injury and pain suffered from the injury and recovery. Since determining the exact dollar amount for these types of damages is difficult, it is common to estimate the damages using the experience of the lawyer and past verdicts with similar injuries.
Punitive damages are different than compensatory damages in the fact that punitive damages are determined by looking at the conduct of the defendant, rather than the injury suffered by the plaintiff. The reason punitive damages are determined by looking at the conduct of the defendant is because punitive damages are meant to punish the defendant, rather than redress the plaintiff’s injuries. Therefore, punitive damages are not awarded in every personal injury case. The Kansas Supreme Court held in Gould v. Taco Bell that punitive damages are reserved for cases in which the defendant was “malicious, vindictive, or wanton.” Furthermore, punitive damages cannot exceed $5 million or exceed the defendant’s annual gross income pursuant to Section 60-3701. Even though punitive damages are not available in most personal injury cases, there are rare instances when they are available for truly egregious situations.
DETERMINING MEDICAL EXPENSES
All personal injury claims will pursue medical expenses as a part of the economic damages suffered by the plaintiff. Medical records, itemized bills and opinions of treating doctors are the most common ways to determine medical expenses. An argued issue regarding medical expenses is whether the plaintiff should recover the full cost of the medical treatment or only the portion actually paid by the plaintiff (such as the deductible for an insured plaintiff). The court has determined that the answer lies somewhere in the middle of the two and a plaintiff is entitled to the reasonable value of his or her medical treatments. Martinez v. Milburn Enterprises, Inc. concluded that a defendant could show a jury the reduced amount accepted by insurance as well as the amount actually billed. With both amounts in hand, the jury then can decide what it believes to be the reasonable value. However, the jury is not told whether the defendant is insured.
Collecting medical records takes time and money. Therefore, after agreeing to represent a client, lawyers will first ask the client to sign a waiver allowing hospitals and doctors to release medical records and bills to the firm. The reason the lawyer needs the waiver signed is because it is used to alert the custodian of these records that they may be released without violating the Health Insurance Portability and Accountability Act (HIPPA). Once the lawyer receives the medical records (which may take several months), the lawyer will then sift through the hundreds of pages of medical records and bills to determine what treatments and costs contribute to the accident. Once the lawyer has determined what contributes to the accident, the records will be used to support settlement demands and potentially be entered as evidence if the case goes to trial.
In addition to going through the medical records, the lawyer might also meet with the doctors that treated the injured plaintiff. The doctors can explain why treatment is related and how they drew the conclusion that is related, what future medical treatments the plaintiff may need and the reasonable value of future or present medical services. Once a lawyer has met with a doctor, the lawyer typically requests that the information discussed be written in the form of a medical opinion, which could possibly introduced at trial. However, more often than not, the doctor will testify at trial and may even be deposed (asked questions under oath outside of trial) by the opposing lawyers.
DETERMINING NON-ECONOMIC LOSSES
In determining non-economic losses, a lawyer typically interviews the plaintiff about how life has changed following the injury. The questions asked deal with personal issues, such as relationships with family and whether the plaintiff has faced depression or disappointment since the injury. Since the lawyer is presenting these losses in a settlement offer or to a jury, a plaintiff must be extremely honest when answering the questions. Moreover, if the losses are not included in resolving the claim, the plaintiff cannot receive redress for the losses suffered and the recovery will be incomplete.
In order to make sure that all losses are included, a lawyer will typically interview the plaintiff’s family and friends. Generally, these individuals are open about any changes they have noticed about the plaintiff since the injury, such as refraining from activities and being withdrawn. Since these changes are directly related to the injury, they should be redressed by the defendant. The lawyer might ask the plaintiff’s family and friends to sign sworn statements or even testify at trial to justify non-economic damages.