Damages

Plaintiffs who win a personal injury lawsuit are entitled to recover money from defendants, which is called damages. There are two categories of damages: compensatory and punitive. Compensatory damages are meant to compensate victims for the loss they have suffered and to restore them to the position they would have been in had the injury never occurred. Punitive damages, on the other hand, are meant to punish defendants for their actions and to deter them from engaging in the same behavior that precipitated the injury.

Compensatory Damages

Compensatory damages are divided into two groups: special damages and general damages.

Special damages are those that compensate a victim for monetary loss associated with the injury. Typical categories of special damages are:

• Medical Expenses: These damages may include medical expenses incurred both in the past and expected to be incurred the future. If the victim is expected to need medical care for the rest of his or her life, the cost of the care is determined by the victim’s life expectancy.
• Lost Wages: These damages cover the wages lost while out of work and also may cover “lost earning capacity,” which is the victim’s inability to earn as much as he or she did before the injury.
• Property Damage: A victim is entitled to recover damages done to his or her property, which usually is determined by the fair market value of the property at the time the damage was done.

While specific damages can be determined with reasonable certainty, general damages are vague and do not have a specific monetary value. Typical categories of general damages are:

• Pain and Suffering: These damages are for the physical pain suffered because of the injury but also may include the victim’s emotional pain. Damages for emotional pain typically are more difficult to obtain.
• Loss of Consortium: These damages compensate the victim’s spouse for the loss of companionship with the victim because of changes in such things as affection, comfort and sexual relations.

Punitive Damages

These damages rarely are awarded and usually are done so only if the plaintiff can establish a pattern of bad behavior from the defendant or if the plaintiff can demonstrate that the defendant’s conduct was particularly outrageous.

In most jurisdictions, a jury will determine whether to award the plaintiff damages. If it does, the award often is subject to a judge’s approval. The judge can either add to the award (additur) or reduce the award (remittitur) if he or she thinks the jury’s award does not fit the facts of the case.

Mitigation of Damages

One aspect of medical care relates directly to personal injury damages: the principle of mitigation. This doctrine says that a plaintiff must take reasonable steps to avoid further injury after he or she is initially injured by the defendant.

For example, suppose Susan broke her ankle in a car accident in which the defendant was negligent. After the wreck, Susan’s doctor told her that she should have surgery on her ankle. He warned her that if she didn’t get the surgery, she likely would experience pain in her ankle for the rest of her life.

Susan elected not to get the surgery and, just as the doctor warned, she experiences frequent pain in her ankle. Because of the mitigation principle, the defendant would not be held accountable for the pain Susan endures because she elected not to have the surgery. If she had followed her doctor’s orders and undergone the surgery, she would have made a full recovery.

The theory behind the mitigation principle is it is not fair for the defendant to be held liable for something the plaintiff could have easily controlled. Simply stated, the plaintiff has a duty to undergo a reasonable medical procedure that will minimize the lasting effects of an injury.

Enforcing a Judgment

When a plaintiff wins a lawsuit, it is only part of the victory. The defendant still has to actually pay the damages, which, for obvious reasons, is not always done voluntarily. If the defendant has a lot of money or is covered by insurance, payment usually is not difficult to obtain.

If, however, the defendant refuses to pay or does not have the money to do so, certain steps can be taken. In many states, the plaintiff may garnish the defendant’s wages (up to a certain percentage) to satisfy the judgment. Some states allow a plaintiff to get the defendant’s driver’s license revoked. If that happens, the license may not be reinstated until the judgment is satisfied. Additionally, some states allow the plaintiff to seize certain assets of the defendant, such as bank accounts or, if the defendant is a business, accounts receivable.

Last update: Sept. 25, 2008