Following serious injuries due to another party’s negligence, a personal injury claim can help you recover some of the financial damages you faced due to your accident. However, many people do not know what they should seek when pursuing a personal injury settlement. Should you seek only restitution for your medical bills? How do pain and suffering factor in?
Working closely with an experienced Florida personal injury attorney can help give you a better idea of the compensation you should expect in a Florida personal injury settlement. As you calculate your personal injury settlement, however, consider these elements that could factor into it.
Types of Damages for Personal Injury Claims
Damages in an injury claim, whether it be a car or motorcycle crash, fall down, or even a wrongful death claim, can be broken down into two categories: general and special.
“Special damages,” also called liquidated damages, have the ability to calculate the amount lost in money in an open market, like replacing your car or lost wages. “General damages” are items that do not carry a price tag. For instance, there is no price on mental pain.
All damages for injury cases are itemized by Florida Jury Instructions, which explain the Verdict Form that a jury will fill out if your case goes all the way to trial.
Section 500 of Florida Verdict Instructions talks about Damages and Section 501.2 contains the elements of damages for a negligence case. They look something like this before being customized for each case:
501.2 Personal Injury and Property Damages: Elements
a. Injury, pain, disability, disfigurement, loss of capacity for enjoyment of life:
Any bodily injury sustained by (name) and any resulting pain and suffering [disability or physical impairment] [disfigurement] [mental anguish] [inconvenience] [or] [loss of capacity for the enjoyment of life] experienced in the past [or to be experienced in the future]. There is no exact standard for measuring such damage. The amount should be fair and just in the light of the evidence.
b. Medical expenses:
Care and treatment of claimant:
The reasonable [value] [or] [expense] of [hospitalization and] medical [and nursing] care and treatment necessarily or reasonably obtained by (claimant) in the past [or to be so obtained in the future].
Care and treatment of minor claimant after reaching majority:
The reasonable [value] [or] [expense] of [hospitalization and] medical [and nursing] care and treatment necessarily or reasonably to be obtained by (minor claimant) after [he] [she] reaches the age of (legal age).
c. Lost earnings, lost time, lost earning capacity:
When lost earnings or lost working time shown:
[Any earnings] [Any working time] lost in the past [and any loss of ability to earn money in the future].
When earnings or lost working time not shown:
Any loss of ability to earn money sustained in the past [and any such loss in the future].
d. Spouse’s loss of consortium and services:
On the claim brought by (spouse), you should award (spouse) an amount of money which the greater weight of the evidence shows will fairly and adequately compensate (spouse) for any loss by reason of [his wife’s] [her husband’s] injury, of [his] [her] services, comfort, society and attention in the past [and in the future] caused by the incident in question.
e. Parental damages for care and treatment of claimant’s minor child; parental loss of child’s services, earnings, earning capacity:
On the claim[s] of (parent(s)), you should award (parent(s)) an amount of money, which the greater weight of the evidence shows will fairly and adequately compensate (parent(s)) for damages caused by the incident in question. You shall consider the following element[s] of damage:
The reasonable [value] [or] [expense] of [hospitalization and] medical [and nursing] care and treatment necessarily or reasonably obtained by (parent(s)) for [his] [her] [their] child, (name), in the past [or to be so obtained in the future until (name) reaches the age of (legal age)].
[Any loss by (parent(s)) by reason of [his] [her] [their] child’s injury, of the [services] [earnings] [or] [earning ability] of [his] [her] [their] child in the past [and in the future until the child reaches the age of (legal age)].]
[Any economic loss sustained by (parent(s)) [including] [any earnings lost in the past] [and] [any loss of ability to earn money in the future] reasonably resulting from the need to care or provide for the child because of the child’s injury [until (name) reaches the age of (legal age)].]
f. Parental loss of filial consortium as a result of significant injury resulting in the child’s permanent disability:
In addition, if the greater weight of the evidence shows that (claimant child) sustained a significant injury resulting in (claimant child’s) permanent total disability, you shall consider the following elements of damage:
Any loss by (parent(s)), by reason of that injury, of their child’s companionship, society, love, affection, and solace in the past [and in the future until the child reaches the age of (legal age)].
If the greater weight of the evidence does not support (parent(s)’s) claim that their child sustained a significant injury resulting in permanent total disability, your verdict should be for (defendant(s)) on this element of damage.
Economic damages include financial losses associated with your injuries. Also referred to as “special damages,” these include direct financial losses that you can calculate, if not exactly, then reasonably.
1) Your Medical Expenses
Medical expenses can mount quickly after a serious accident, whether you suffered injuries in an auto accident or a slip and fall. Your medical bills begin with the cost of ambulance transport away from the scene of the accident: in Florida, a critical care ambulance could cost more than $1000 per individual transported. Then, you will face the cost of emergency treatment. You may also need:
Many victims of serious accidents must spend a long time in a hospital during their recovery. Depending on your injuries and their severity, this could include a stay in a specialty unit, such as a burn unit for burn victims, or a stay in ICU for victims with severe injuries. You may also need to move to a long-term care facility for some assistance during your recovery.
Many victims must go through substantial treatment to aid in recovery from their injuries. Treatment could include surgeries, multiple follow-up visits with your doctor or doctors, and ongoing tests to track the course of your recovery and determine what further treatment you need or how you will continue to recover from your injuries.
If you suffered serious injuries, it might take time and therapy to help you regain your independence or restore as much strength and mobility as possible. Amputees, victims of spinal cord injuries, or victims with traumatic brain injury may need to undergo substantial occupational therapy to learn how to cope with their new limitations. Victims with severe injuries may also need ongoing physical therapy. Psychological therapy can also offer valuable coping mechanisms for victims of severe accidents.
Durable Medical Equipment
Durable medical equipment can aid in recovery or independence for many victims. Spinal cord injury victims, for example, may need a wheelchair or crutches and braces to help them get around. Victims with severe injuries may need to use a hospital bed at home to return home as soon as possible.
2) Out-of-Pocket Expenses
What did you have to pay for out-of-pocket as a result of your accident and your injuries? For many victims, those out-of-pocket expenses mount quickly, especially if you suffer injuries severe enough to require you to make modifications to your home as a result of your accident. For example, you may need to install a wheelchair ramp, widen doorways in your home, or change your bathroom or kitchen to make it wheelchair accessible. Keep the receipts for all those modifications, since you can often include them as part of a personal injury claim.
You may also choose to include other out-of-pocket expenses, such as travel and lodging expenses if you needed to stay away from home during treatment. Consult an experienced attorney to learn more about what expenses you can include as part of your personal injury claim.
3) Lost Wages
Many severe injuries may cause their victims to miss work, often long-term. A victim with traumatic brain injury, for example, may struggle to concentrate well enough to focus on normal work tasks, or may not have the ability to control his emotions well enough to work in a customer service position. Some injuries also cause such severe damage that the victim cannot function or complete normal work tasks while recovering.
In some cases, as you recover, you may return to work in some capacity. Some employers, for example, will make the modifications needed for an accident victim to return to work as soon as possible after the accident, allowing the victim to work from home or to work part-time or on a limited basis while recovering. Others, on the other hand, will or cannot.
Keep track of the wages you lose as a result of your injuries. If you end up back at work part-time, an attorney can help you calculate the difference in your wages and include it as part of a personal injury claim. Compensation for those lost wages can make it easier to pay your bills and take care of your financial obligations in the aftermath of your accident.
4) Property Damage
In addition to physical injuries, you may also have suffered severe damage to your property. In an auto accident, for example, the vehicle involved in the accident often suffers significant damage. A product liability accident could cause damage to your home as well as to your body. Calculate any property damage you suffered as a result of the accident and how it impacted you financially.
Non-economic damages also referred to as general damages, can prove more difficult to calculate than economic damages. Working with an attorney can help you better calculate those damages and how they apply to your claim. Non-economic damages do not have a specific dollar amount, but rather get assigned a value based on other elements of your claim, often the amount of your medical bills. These include:
1) Pain and Suffering
Pain and suffering often represent the largest portion of a personal injury settlement. Based on the compensation you need for medical bills associated with the accident, compensation for pain and suffering provides vitally-needed compensation that can help you rebuild your life or handle your financial obligations after a serious injury.
Talk to an attorney to learn more about how pain and suffering get included in your claim and how it will get calculated. Generally, victims receive between 1.5 times and 4 times their medical expenses in compensation for pain and suffering. How much you get may depend on how much the accident has impacted other areas of your life. An attorney can help you evaluate how both the physical pain and emotional anguish associated with your accident have impacted you.
For example, a victim with a traumatic brain injury might lose close, important relationships due to personality changes related to the accident. Many victims feel socially isolated in the aftermath of a serious accident, since they may miss out on important connections to friends and family during their recovery. Other victims struggle with the loss of activities and hobbies they once enjoyed before the accident.
2) Loss of Consortium
In some cases, an accident can cause your spouse to suffer just as much loss as you do. While the loss of consortium usually applies to the loss of the sexual relationship between spouses, sometimes caused by severe injuries like spinal cord injuries, it can also refer to the loss of companionship that comes from a serious injury. The spouse of the injured party could find herself relegated to caregiver, missing that vital relationship and connection even though the spouse still lives.
In addition to the other damages recovered in personal injury claims, some victims also have the right to claim punitive damages — damages assigned as a punishment to the party that caused your accident. In a drunk driving accident, for example, the drunk driver does not just commit negligence. He also commits a criminal act in choosing to drink and drive. In some cases, you can pursue punitive damages from the liable party in addition to damages associated with the specific losses you face. Punitive damages usually rely on a criminal act of some kind and maybe assigned directly by the court, with less room for negotiation than other types of damages. These damages also depend on the severity of the liable party’s actions, rather than on the extent of your injuries.
Wrongful Death Damages
Wrongful death damages are laid out in Florida Jury Instructions, section 502. For a more in-depth look at wrongful death cases, see our Wrongful Death page.
Damages for Wrongful Death cases are heavily controlled due to statutory limitations by lobbyists.
For instance, in a wrongful death case where there are no survivors, the damages are laid out in Florida Jury Instructions Section 502.4. The verdict would only include lost earnings from the date of the injury to the date of death, medical and funeral expenses that were paid, and the estate’s loss of net accumulations, which is the part of the decedent’s net income after taxes.
In a wrongful death where the decedent has “survivors,” the verdict should include lost earnings, lost net accumulations, medical and funeral expenses, support, and services.
A surviving spouse in a wrongful death action is allowed to include some of their own damages, such as lost companionship, pain, and suffering. By comparison, a surviving child can include loss of parental companionship, instruction and guidance, pain, and suffering. Parents of a deceased child can include recovering from mental pain and suffering.
The analysis for wrongful death requires a deep dive into finances and life expectancies, and often requires hiring life planners and accountants, so most benefit from talking to a personal injury attorney immediately.
Proving Your Damages
When you and your injury lawyers are considering these damages in your personal injury claim, one of the benefits of having a good lawyer, especially one that is board-certified, is that they will know which of these can be proven and how.
Some injury damages that seem easy are harder than many people expect, like lost wages or pain and suffering. Things like photographs, medical records, before and after witnesses, doctors, tax records, and experts are just a few things that will help you get the verdict you deserve and motivate the insurance carrier to settle without a trial.
Collateral Sources Trickery by the Insurance Company
After a jury has rendered its verdict and left, their verdict then gets reduced by the Court to reflect money that some insurance company, Medicaid, or Medicare has paid or, sometimes, will pay in the future. Because of this, it is essential that juries do not lower their verdict due to insurance money or other free handouts they think a person has gotten or will get! That is controlled by section 501.8, where juries are instructed not to do that.
Can a Personal Injury Attorney Help?
If you suffered serious injuries in an accident or want to know more about your rights, a personal injury attorney can help you better understand what you can ask for in a personal injury settlement and what factors contribute to your right to compensation. Florida, for example, is a pure comparative negligence state — the damage you can recover is typically reduced by the percentage of fault you bear for the accident if any. Florida law may also determine how long you have to file a claim against the party that caused your accident — under Florida law, you have until two years after the accident to file for compensation in civil court.
If you put your trust in Herman & Wells, you’ll be connected with a board-certified personal injury attorney. That initial legal consultation is free and you’ll get significant insights into the value and damages linked to your claim. Our law firm doesn’t get paid unless we recover those damages for you.
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