Interviewer: What am I able to recover in a personal injury claim or lawsuit?
Reuben J. Donig, Esq.: In almost every personal injury claim, there are two general kinds of compensation that the injured person can seek to recover, and I would call them in two categories, economic damages, and non-economic damages. Economic damages are the kind of compensation that the person who was injured through someone else’s fault or liability is able to recover to compensate for both past and likely future economic financial losses. That would be the cost of any medical treatment that was incurred, and any medical treatment in the future that’s likely to be incurred as a result of the treatment for the injuries, any business losses, loss of salary, loss of income. One of the biggest mistakes that people make in calculating or assessing their economic damages is they feel, “Well, I’m out of pocket this amount because my health insurance paid.” Or, “I missed a lot of time from work, but I was able to use my sick leave or vacation leave, so I didn’t really lose the money.”
That’s a false conception. That’s wrong. You’re actually able to recover all of the medical bills that were paid or for which you’re still liable even if they were paid by your own insurance company. You’re entitled to collect for past income loss even if your boss didn’t withhold that money or you got disability. Those sources which compensate you or pay you for your income loss or your health costs like your health insurance, those are called collateral sources. And just because a collateral source pays your expense or compensates you for your income loss, that is not an excuse for the defendant not to compensate you fully even if you receive that money elsewhere. You may have to reimburse your health insurance, you may have to reimburse your disability insurer, but the party at fault for causing your injuries is still fully liable for all of your past and likely future losses and expenses, even if you’ve collected some compensation, or had some of those losses covered by a collateral source.
So, that’s economic damages. You’re also entitled to be compensated for what are called non-economic or general damages. You’ve probably heard that referred to frequently as pain and suffering. What that means is if you’ve been injured through the fault of somebody else, they have to compensate you in such a way that makes you whole, brings you as closely back as possible to the status that you had before. Giving you financial compensation for your past medical expenses and future medical expenses, past income lost or diminished earning capacity, or other out-of-pocket expenses doesn’t bring you back to whole. You still have suffered pain, you’ve still undergone pain, you’ve experienced the consequences of that pain or the limitations, your life has been changed, the ability to partake in activities, recreational activities, household activities, enjoyable activities, activities you need to engage in, whether they’re daily routine activities, family activities, all of that’s been compromised. It’s been compromised or lost.
If, for example, you lose a hand in an accident and one of your hobbies was playing the piano using both hands, of course, to play the piano, or playing in a sport that required the use of that hand, or engaging in other activities, tying your tie, buttoning your shirt, all of that stuff’s been made more difficult. It’s not just the physical pain you’ve had, it’s all the ways in which your life has been adversely affected by the injury you’ve sustained. And the defendant, if they’re responsible for causing this injury in the first place, has to compensate you financially with money, because that’s the best way we can do it, in such a way as to bring the scales back into balance to make you whole. So, you have to recover not only your economic but also your non-economic damages.
Very occasionally, there’s a third category of damages called punitive damages. And that takes place where someone who has injured you through deliberate or completely reckless misconduct, a person who’s driving heavily under the influence of alcohol or going 120 miles an hour in a 60-mile an hour, 65-mile an hour zone, they’re acting in complete reckless disregard of your wellbeing and safety, and the law will often impose punitive damages as a measure to punish that person and to prevent other people from engaging in similar conduct. So, once in a while a claim can involve a claim for punitive damages as well, but I would say more than 90%, 95% of personal injury claims boil down to the economic damages and the non-economic damages.