Damages in Personal Injury Cases
People ask all the time, "what's my case worth?" Here are some factors that go into evaluating a Personal Injury case, and how they can affect the compensation an injured person receives.
I. Quantifying Damages
A. Factors to consider in Quantifying damages
1. Age of the Plaintiff
A clients age is always considered when quantifying damages. When someone in an accident has sustained a permanent injury, their life expectancy is relevant in determining how long they will have to endure the effects and physical limitations caused by the accident. It will also factor into whether there will be further medical bills and treatment due to age related degeneration, which can result in future surgical interventions. In this regard, the client's physician should be asked to provide an opinion, with reasonable medical certainty, as to the effect of time on the injury sustained.
The Social Security Life Expectancy Tables are a useful tool in establishing the life expectancy of a client.
2. Education and Professional Training (physical and mental requirements)
The client's education and training are relevant is assessing the affects an injury has had on their ability to earn a living. Take for instance a laborer with limited education who sustained an injury that prevents them from lifting over a certain number of pounds, or a surgeon who injured his hands or eyes. Such an injury has a profound effect on their ability to work.
In these cases, you should consider an economist to determine the loss of earnings or earning capacity. Another useful measure of damages where an injured person sustained an injury that impairs their ability to perform their usual and customary duties of their employment, is the cost of vocational training.
3. Potential Vocational Training Costs
Vocational Rehabilitation is a process whereby someone who has been injured and has functional disabilities that fully prevent them from performing the duties required of their chosen profession. It requires the input of healthcare professionals, employment advisors and career counselors. The costs may vary widely and depend on the limitations of the client
These services typically include the following:
a. An assessment of aptitude
b. Physical restriction assessment
c. Health advice in support of returning to work
d. Identifying potential suitable employment which factors in education and limitations of function (if unable to return to previous employment)
e. Job retraining
A client's medical records are reviewed to determine what occupation they can physically perform. They are then given an aptitude test to determine which jobs they are best suited for. From that list, the client decides which jobs they feel best suited for. The job retraining options are then provided and job retraining begins.
4. Gender (in cases of disfigurement)
Scarring or disfigurement often happens in severe Motor Vehicle Accidents and dog bite cases. When the scar is on the face, the damages will be valued much higher than scarring on another less visible part of the body. They can be painful in cases where scar tissue hardens and limits mobility of the skin. They can also be cosmetically unappealing and cause nerve sensitivity and emotional distress. Typically, if a scar has not healed after one year, it will be permanent.
Gender and age play a part in the value of a scarring award. Adjusters and juries are apt to value a scar higher when the victim is female, especially a young female. While the reasons are obvious to some and sexist to others, the fact remains that a scar on a woman is perceived as more damaging physically and emotionally than a scar on a man.
B. Joint and Several Liability and Apportionment
Connecticut has adopted a modified form of Several Liability, (C.G.S 52-572h attached as Exhibit B). Under this rule, joint tortfeasors are only severally liable, meaning they are liable only in accordance with their portion of fault. There is a provision that the court can reallocate liability in the event that the judgement remains unsatisfied after one year based upon the other tortfeasors relative degree of fault (C.G.S. §52-572h(g)).
Apportionment (C.G.S. 52-102b attached as Exhibit C) may be used where a third party from whom contribution is sought is brought into the main action.
Typically, this occurs where a defendant seeks to deflect or share proportionate responsibility with another party. Under the statutes, a plaintiff can file a direct action against the apportionment defendant pursuant to C.G.S. 52-102b(d).. You must file an Amended Complaint and serve is upon the apportionment defendant within sixty (60) days of the return date on the Apportionment Complaint. This allows for a direct action against a non-party even if the Statute of Limitations has run.
C. Sources of Statistical Data
1. Inflation Adjustment
Inflation and deflation involves the buying power of goods and services over time. The economic theory is that the value of a dollar today will not have the same value in the future. In determining damages for lost wages, inflation is useful for cost of living adjustments. A good calculator for this is the Consumer Price Index. The Bureau of Labor Statistics also has a calculator function that is helpful.
2. Labor Statistics
The US Bureau Labor of Statistics has compiled useful information on occupation, wages by occupation, occupational outlook, and statistics on inflation, unemployment and workplace injuries. They are the principle fact finding agency for the Federal Government for labor statistics. It can be accessed at The Bureau of Labor Statistics Website.
3. Dictionary of Occupational Titles
The Dictionary of Occupational Titles or DOT refers to a publication by the United States Department of Labor which helped employers, government officials and workforce development professionals define over 13,000 different types of work.
It was created by job analysts who visited thousands of US worksites to observe and record the various types of work, and what was involved.
The DOT was replaced by an online database which was based largely on voluntary input from people who had direct experience working in each occupation. The new occupational database is called the Occupational Information Network or the O*NET. It can be accessed here.
The DOT and its progeny are helpful tools in understanding what the day to day duties entail for your client's occupation and how an injury might affect their ability to perform the essential duties of their job.
D. Using Experts to Quantify Damages
Every time you accept a new injury case, a decision must be made weather to hire an expert. Experts can help you understand the facts, the strengths and weaknesses, and value of the case. They can assist in preparing discovery and aid in trial strategy. The following is a list of some of the types of experts one may consider:
- Accident Reconstructionist
- Medical Experts
- Manufacturing Experts
- Mental Health Expert
When you begin to choose your expert, be mindful of their area of expertise. For instance, in a medical malpractice case, you must have an expert in the same area of practice as the physician who is alleged to have committed malpractice. Therefore, a Neurosurgeon may not be an appropriate expert in a case against an Orthopedic Surgeon. It is also important that your expert communicate effectively in terms that the jury can understand.
Once you have chosen your expert and commenced litigation, you must comply with the rules of disclosure. Experts must be disclosed in a timely manner, and the disclosure must include their identity, background, employer, area of expertise, subject matter about whether the expert will testify and the substance of the grounds for each opinion (See Practice Book §13-4 attached as Exhibit D).
While experts are not required in every case, they are certainly something to consider each time you accept a new personal injury matter.
E. Past and Future Medical Expenses/ Treatment
Medical bills are the most basic element of economic damages in a personal injury case. They often include:
1. Hospital Stay
2. Emergency Medical Services
3. Doctors and Diagnostics Tests
4. Physical Therapy
5. Nursing Services
7. Prescription Drugs and Other Medical Expenses
8. Transportation and Temporary Housing Expenses
One of the first questions typically asked by clients is "how will my medical bills get paid?". In Connecticut, there is no requirement that a driver have a medical payments provision on their auto insurance policy. A car insurance policy can include Personal Injury Protection or "PIP", which covers reasonable medical expenses. Otherwise, it is either submitted through the victim's health care insurance or through a letter of protection "LOP", with the physician. When a doctor agrees to accept a letter of protection, the Attorney guarantees that the physician's services will be paid out of any settlement or verdict. This allows the client to obtain treatment and not have to pay out of pocket as the services are rendered.
The medical expenses are considered economic damages and are included in all damage calculations. Similarly, future treatment is an element of economic damages. It is important to request from the clients treating physician a final evaluation that addresses what future medical treatment resulting from the accident can be reasonably expected and the cost of such treatment.
F. Property Damage in an Injury Case
Property damage is an item of economic damage in Personal Injury cases. They often include towing, storage, the cost to repair or replace the vehicle, loss of use of the vehicle, any personal property destroyed in the accident, and diminution of value of the vehicle.
Insurance companies typically view the extent of the damage to a vehicle when assessing the severity of impact. Often times when the impact has caused little to no damage to a vehicle, adjusters will downplay any significant permanent injury claims. Where the injuries warrant, an accident reconstructionist with experience in human kinetics can be helpful in proving that a perceived low impact can cause significant injury.
G. Determining Future Value, Present Value vs. Inflation and Cost of Living Adjustment
There are two different economic theories when determining the time value of money. One method is Present Value. Present Value calculates the current worth of a future lump sum of money or annuitized payments, discounted for inflation and the time value money at a particular interest rate. It is essentially compound interest in reverse. There are many present value calculators on the web, for instance Investopedia's online Present Value Calculator.
An example of the usefulness of such a calculation is where the client has suffered wage loss over time. To calculate what the income stream is presently worth, one must determine what the number of weeks lost will be,
the future value of the payments, and what a reasonable rate of return will be for that time period.
Inflation and cost of living adjustments are relevant in determining the future value of the payments. As set forth previously, inflation decreases the value of a dollar over time. Therefore, when determining the future value of money, one must consider inflation or cost of living adjustments to account for the decrease in the value of money over time. A good source for the cost of inflation is the Consumer Price Index or CPI. The Bureau of Labor Statistics has an online CPR Inflation Calculator. This is a very useful tool in determining the future value of money.
The context of every personal injury case is different. Not all of these factors can apply to a case based on the circumstances. If you're considering filing a claim, call us at 203-754-7779 to schedule a free consult today.