How Are Damages Determined in a Personal Injury Lawsuit?

Personal injury lawsuits are stressful. Not only is the plaintiff injured, they are often scared, angry and anxious.

While the injurious event can’t be erased, compensation, in addition to paying for medical needs, can provide a feeling of accountability and a sense of restoration. 

“The goal is to make the injured person whole again — meaning to compensate them for what they’ve lost, whether it’s income, medical expenses or quality of life,” says Angélicque Moreno, a personal injury attorney at Avanzino & Moreno in Brooklyn, New York.

Types of Damages in a Personal Injury Case

Personal injury damages fall into three categories: Economic, noneconomic, and punitive.

Economic Damages

Economic damages are meant to represent the financial losses and direct costs caused by an injury. These calculable damages can include “emergency room visits, physical therapy costs, surgery bills, lost wages and future medical expenses,” says Moreno. 

“If you are injured and not treated, then you are not going to be compensated,” adds Laura Rosenberg, a personal injury attorney at Rosenberg & Rodriguez in Freeport, New York. “Be sure to get medical treatment for the injuries that you’ve sustained.”

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Noneconomic Damages

Noneconomic damages involve more subjective things like emotional distress and “pain and suffering,” says Rosenberg. Calculating them is therefore less straightforward.

These damages cover things like “chronic pain, depression following an injury, inability to participate in hobbies and PTSD,” says Moreno. 

These injuries can be some of the most disruptive — but that disruption must be documented. Specific pain and suffering considerations include “the client’s own testimony, medical records, photographs, videos, witness statements and sometimes expert reports from psychologists or treating doctors,” Moreno says. 

Punitive Damages

Punitive damages, meanwhile, are applied only when the defendant’s conduct is deemed “reckless or egregious and involves intentional harm or gross misconduct,” Moreno says. 

Life-altering injuries often warrant more extensive compensation. “Catastrophic injuries like traumatic brain injuries, amputations, paralysis or even severe burns typically lead to higher awards because of the long-term impact, ongoing care needs and disruption to the person’s life,” says Moreno. 

“The more invasive the treatment, the more seriously the jury will treat your injury,” adds Rosenberg.

[Personal injury lawyers] ensure deadlines are met, legal procedures are followed, and no damage category is overlooked.

Factors that Reduce Compensatory Damage Awards

New York is a pure comparative fault state. This means “if you are responsible for part of the incident, your award amount will be reduced by the percentage of your liability,” Rosenberg says. “For example, in a lane-change case, if it is determined that it is 20% your fault, and the jury awards $100,000 for your injuries, you will get $80,000 — not $100,000.”

Insurance coverage is often a factor, as well.

“The insurance limits of the responsible party generally affect the plaintiff’s recovery amount, unless the plaintiff has coverage under their own policy that would allow for supplementation,” says Rosenberg. Policies such as auto, umbrella and homeowners must be identified and evaluated, adds Moreno.  

Upon successful conclusion of a case, most lawyers get paid one-third of the damages award.

A Personal Injury Lawyer Can Help You Get Fair Compensation

One of the most crucial skills personal injury attorneys bring to the table is the ability to negotiate with insurance companies. Attorneys also “thoroughly investigate, preserve evidence, work with medical experts, negotiate aggressively, and, if necessary, take the case to trial,” Moreno says. “We ensure deadlines are met, legal procedures are followed, and no damage category is overlooked.”

So how do personal injury attorneys themselves get paid? Most utilize a contingency fee structure, which means clients have no upfront out-of-pocket expenses. “Upon successful conclusion of a case, most lawyers get paid one-third of the damages award,” says Rosenberg.

Find an Experienced Personal Injury Attorney

The amount of damages in a personal injury claim can depend on many factors. If you’re considering legal action for financial compensation, consult with a lawyer as soon as possible. Many personal injury lawyers provide free case evaluations.

Visit the Super Lawyers directory to find a personal injury lawyer near you.