When you have been injured in an accident that was not your fault, one way the legal system attempts to make up for what you have lost is to compensate you monetarily. The purpose of compensatory damages in a personal injury claim is to try to place the injured victim in the position in which he would have been if he had not been in an accident.
Settlements in personal injury cases involving car accidents, premises liability accidents, medical malpractice, and more, involve two main types of compensatory damages:
- Economic damages. Also called special damages, these damages refer to medical treatment, lost wages, and other losses with a specific dollar value.
- Non-economic damages. Sometimes called general damages, these damages compensate an injured person for the grief, pain, and emotional issues that develop from their injury as well as loss of consortium.
Typical medical expenses that may be included in a personal injury lawsuit include:
- Emergency room visits
- Primary care doctor visits for referrals to relevant specialists
- Chiropractor costs
- Physical therapy costs
- Diagnostic fees
- MRIs, X-rays, or CT scans
- Prescription medication
- Future medical damages related to a permanent disability caused by the accident
To recover these types of damages in a tort action for medical expenses, you must prove them by substantial evidence. The evidence must show that the charges were reasonable and that the services rendered were necessary.
To receive an award of future damages, you must introduce competent medical evidence showing future physical conditions of the kind asserted as damages will result from the original injury. The degree of probability of such damages must be reasonably certain. Consequences which are speculative or merely possible may not be considered. We often hire an expert witness to provide testimony on future life-care plans if our client has suffered a permanent disability.
Loss of Earnings
When you fill out our introductory questionnaire, you will be asked about any loss of earnings your accident has caused you. Loss of earnings includes regular wages as well as your loss of overtime accrued, shift allowances, bonus payments, and even your pension.
If your injuries are severe enough, you might not be able to return to the job you had before your accident or have to take a different, lesser paying job. This still may be considered in your loss of earnings.
We will need to produce evidence to support the loss of earnings you are claiming. Life expectancy tables may be introduced in a personal injury case only if there is evidence that there is a permanent injury.
In an injury case, you may also be awarded damages for the replacement or repair of any property harmed in an accident. For instance, if you were injured in a car wreck, damage to your car is a common occurrence. In addition to the loss of value and costs to repair the car, you would receive compensation for damage to property contained within the car as well as reimbursement for obtaining a rental car while your vehicle is being repaired.
Pain and Suffering
The most personal element of an injured person’s experience is the physical pain and suffering that was endured. An injured party may recover compensatory damages for bodily pain, humiliation, mental anguish, and other injuries that occur as a necessary and natural consequence of tortious conduct.
There is no fixed measure or standard available to the jury in determining the measure of damages for pain and suffering. The measure of damages is simply that which is fair and reasonable.
The Kansas Supreme Court has recently ruled that the cap on non-economic damages, such as pain and suffering, is unconstitutional. This means as of recently, there is no cap on the amount of pain and suffering damages one can receive. There was recently a cap.
In Missouri, however, there are no caps on non-economic damages such as pain and suffering, other than for wrongful death related to medical malpractice.
Actionable losses by the spouse of the injured person include the loss of services, society, companionship, care, love, comfort, affection, and conjugal rights that would normally be available.
An action for loss of consortium is a tort action separate and distinct from the personal injury action brought by the spouse. Therefore, a person claiming loss of consortium must prove that he or she personally sustained actual damages, such as those described above. The claimant will not prevail merely by showing that his or her spouse was injured.
In Kansas, the injured party files the claim for his or her spouse. In Missouri, the spouse of the injured party files the claim in their name.
Punitive damages are intended to punish the defendant and deter similar conduct. They are not intended to compensate the plaintiff. Punitive damages are usually only obtained in the most egregious cases.
In Missouri, to make a case for punitive damages, the evidence and the inferences must allow a reasonable juror to conclude that the defendant’s conduct was outrageous because of evil motive or reckless indifference. It is not the commission of the act/tort that matters, but the conduct or motive that provides the basis for punitive damages. Punitive damages are extraordinary and harsh, and so the evil motive or reckless indifference must be proven by clear and convincing evidence. Evidence that shows complete indifference to or conscious disregard for the safety of others will support a claim for punitive damages in a negligence case.
Unlike in Missouri, punitive damages in Kansas are capped under statute K.S.A. § 60-3702(e), (f). No award of punitive damages shall exceed the lesser of: (1) the annual gross income of the defendant based on the defendant’s highest income earned in any one of the five years before or after the act for which damages are awarded; or (2) five million dollars. K.S.A. § 60-3702(e). However, if the court finds that the defendant’s profit from the misconduct exceeds the limitations above, then the amount of damages is limited to one-half times the amount of profit the defendant gained or is expected to gain as a result of his misconduct. K.S.A. § 60-3702(f). To recover punitive damages in Kansas, a plaintiff must establish by clear and convincing evidence at the initial phase of the trial that the defendant acted with “willful conduct, wanton conduct, fraud or malice.” Further, the jury decides whether punitive damages shall be allowed. If the jury determines that punitive damages are allowed, a separate proceeding is conducted by the Kansas court to determine the amount of punitive damages.
How Foster Wallace Can Help
At Foster Wallace, we are committed to helping individuals who’ve suffered serious injuries due to the negligence of others receive the compensation they need to move forward with their lives. Call today to schedule a consultation to discuss your legal options.