Motor vehicle accident (“mva”) victims can recover a broad range of damages. This post explores the various types of compensation available. It also reviews the evidence experienced personal injury attorneys present to recover damages for their clients.
Victims hurt because of another driver’s negligence are entitled to receive damages for losses they incur. The injured party must prove causation. That is, the harm the victim suffers must be a direct cause of the at-fault driver’s negligence.
By statute, before bringing suit, an individual must incur “reasonable and necessary expenses” of at least $2,000 to treat the bodily injuries the mva causes. The plaintiff, according to an SJC ruling, must prove that treatment underlying medical expenses legitimately arises from the plaintiff’s claimed injury.
A victim garners compensation if able to prove the mva-related injuries aggravate a pre-existing injury or medical condition. This holds true in other personal injury cases too. In one case, a woman claimed her multiple sclerosis was exacerbated after she fell while exiting an elevator. She alleges the defendant repair company negligently services the elevator. The Court agrees.
GENERAL AND SPECIAL DAMAGES
Many types of damages and expenses are recoverable by a mva victim whom a negligent driver injures. Compensation for medical bills from surgeries, physician visits, and diagnostic tests is available. Also recoverable are anticipated medical expenses. These include long-term care and future surgeries.
Experienced personal injury attorneys assemble the complete medical record. Medical invoices, ambulance bills, home health care bills, drug prescriptions, and costs for medical devices (crutches and wheelchairs) fill the record. The record also contains treating physicians’ notes, diagnoses and prognoses. Additionally, nurses’ notes, lab results, X-rays and surgical procedures appear in the record.
Scarring and disfigurement are oft-rewarded damages in personal injury case law. A victim can pursue loss of enjoyment of life damages. In one case, for example, a plaintiff receives loss of enjoyment of life damages after she is hurt in a fall. In that case, she sues a bar owner for negligently maintaining the premises. The resulting injury prevents the plaintiff, a dedicated ice skater, from performing at her previous skill level, the Court finds.
An mva victim is eligible to receive lost wages and loss of earning capacity damages. Evidence, such as tax returns and pay stubs, support lost wages claims. The documents indicate the injured party’s wages. They also reflect what the victim would have earned during the period of disability.
Loss of earning capacity concerns the victim’s diminished ability to earn money in the future because of the mva injury. As the SJC writes in a decision, “It is a familiar rule that the plaintiff in a personal injury action is entitled to recover damages for impairment of earning capacity.” Factors, including the victim’s age, occupation and life expectancy, figure into determining loss of earning capacity.
Lost wages and loss of earning capacity are calculable amounts. They constitute “special damages”. Harm that is harder to assign a specific value to earns the moniker of “general damages”. General damages include pain and suffering and loss of consortium.
PAIN & SUFFERING
Because pain is subjective, conscious pain and suffering damages are difficult to assess. Courts support these damages in cases such as Cuddy v. L & M Equipment Co. Courts espouse that past and future physical pain and mental suffering are elements of fair compensation for bodily injury a defendant’s negligence causes. Invariably, insurers downplay the degree of pain victims endure. Credible plaintiff testimony that doesn’t exaggerate the nature of the injuries helps a jury or judge assign a dollar amount to pain and suffering.
Loss of consortium damages involve the loss of services and conjugal relations. A spouse sustains these damages because of the partner’s mva injury. The SJC in the Ferriter case acknowledges that a minor child also may recover loss of consortium damages. To do so, the minor must be financially and emotionally dependent on an injured parent .
Emotional distress damages also are available to a plaintiff who suffers a motor vehicle accident bodily injury. Again, proof of mental anguish comes from the plaintiff’s testimony. Also, the testimony of others who observe the plaintiff’s discomfort is valuable.
This post first appeared here: Getting Personal: Recoverable Damages in Car Accidents