Ask the County Law Librarian – Calculating personal injury damages
Q: I fell while visiting someone’s apartment a couple of months ago, and was injured. I’ve called him many times, but so far he’s been unwilling to even talk to me about this, so I think I need to sue him. I have a lot of medical bills, lost wages from missing work, and other expenses. I’d also like to get something for my pain and suffering. How can I figure out how much I should sue for?
A: Calculating damages in a personal injury case can be tricky. There is no set method or legal formula for determining the exact amount. Instead, personal injury damages are based on a combination actual expenses and compensation for pain and suffering. There are many factors to be considered when determining the amount you are owed.
Special, or economic, damages are typically easy to calculate. These damages include your actual out-of-pocket expenses for things such as medical bills, costs to repair or replace damaged property, lost wages, or any sick leave or vacation time you had to use while recuperating from your injuries. You may also be compensated for lost future earnings if the injury will prevent you from being promoted to a better job, or requires you to be moved to a lesser-paying job.
General, or non-economic, damages can be much trickier to determine. These types of damages are commonly called “pain and suffering.” These damages are intended to compensate you for non-monetary injuries you experience, such as pain, anxiety, and other suffering you have to endure because of your injury. For most types of cases, there is no law that dictates the amount of general damages you may receive (medical malpractice is an exception!). Instead, this amount is based on a variety of factors, including the nature and severity of the injury, the amount of pain you experience, length of recovery, and the disruption of your life. Most of these are fairly subjective, which can make it difficult to arrive at a number. For more information about the types of damages that may be awarded in personal injury case, see the Nolo Press article, “Damages: How Much is a Personal Injury Case Worth?”
There is no legally mandated method for determining damages in a personal injury case. When estimating how much an injury claim is worth, many attorneys and insurance companies will start by calculating the special damages, since these are usually very easy to determine. Then, to get a reasonable starting number for negotiating general damages, they will multiply the amount of special damages by a factor of 1.5 to 5, depending on the severity of the injuries. Relatively minor injuries would be on the low end of the multiplier range, while serious or long-lasting injuries would likely be at the high end of the range. For example, if the plaintiff suffered a minor injury with $1000 in medical bills and lost wages, he may want to ask for $1000 in special damages and $1500 in general damages ($1000 x 1.5). If the plaintiff suffered a more serious injury, with $100,000 in medical bills and lost wages, he may want to ask for $100,000 in special damages, and $500,000 in general damages.
The theory behind estimating general damages based on special damages is that more serious injuries will result in higher special damages, and will likely cause the plaintiff greater pain and suffering. The multiplier is used to make adjustments based on the severity of the injury the plaintiff suffers. However, this is just a starting point; you need to consider other facts about your accident and your injuries, including how painful your injury type is, how invasive or long lasting your treatment, or how serious or visible any permanent effects of your injury will be. For more information on this method of estimating damages, see this informative Nolo Press article, “How do Insurers Value an Injury?”
Although this method is an easy way to arrive at a number, it does not take into effect one important aspect of litigation: the jury. If your case does get to the jury trial stage, the jury will ultimately determine the amount of damages to award. Juries will be swayed by things you have little control over, such as the effectiveness of your witnesses, a sympathetic defendant, or the dramatic nature of your accident or injury. These types of intangible factors can greatly influence the jury, and therefore the outcome of your case.
For this reason, many attorneys like to see what juries have awarded in similar cases. There are several print and electronic resources that may be used for this type of research. See the Law Library’s guide on Verdicts and Settlements for more information.
Finally, keep in mind that there are many other factors that may complicate your situation, or make it more difficult to estimate damages. The library has several resources that may you may find useful in assessing your situation and calculating damages, including “How to Win Your Personal Injury Claim” by Nolo Press, which includes a very detailed chapter on determining how much your claim for injuries is worth, as well as get tips for negotiating a settlement with the defendant.
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