Founding Member, Trial Lawyer
You have recently been injured in a car crash, slip and fall, or some other type of accident, and you are considering filing a lawsuit. But, how do you determine what your case is really worth. Figuring out what your injuries have cost you monetarily, physically, mentally and emotionally comes down to putting a value on what the legal system calls your “damages”.
Damages are the amount of money that can be awarded to an injured party, usually the plaintiff in a lawsuit, and paid by the person or company found to be legally responsible for the accident. The amount of an injured person’s damages can be determined in two ways: (1) by agreement between the parties (settlement); or (2) through a damage award rendered by an arbitrator, a judge, or a jury following a trial. Two types of damages can be awarded in a personal injury case; compensatory damages and punitive damages.
Most personal injury damages are classified as “compensatory damages”. These are intended to compensate the injured party for what was lost due to the accident or injury. A compensatory damages award is meant to make the injured party “whole” again from a monetary standpoint.
Compensatory damages have two classifications: (1) “economic damages”; and (2) non-economic damages.
Economic damages are straightforward. They are easily calculated using direct evidence and firm dollar figures. Economic damages include:
The cost of your medical care associated with the accident. This reimbursement would include not only the cost of treatment that you have already received but also the estimated cost for medical care that you will need in the future because of the accident.
An injured party may be entitled to compensation for the loss of income or wages for time taken off work because of the accident. This includes time taken off work for doctor’s appointments. You may also be awarded for the loss of future income or the “loss of earning capacity”, which represents the money that you would have been able to earn in the future had the accident not occurred.
If your vehicle, clothing or other items were damaged as a result of the accident, you will likely be entitled to reimbursement for repairs or compensation for the fair market value of the property that was lost.
Non-economic damages are the harms that were caused by the injury that do not, and cannot, have a dollar amount attached to them. These include:
Pain and Suffering
If you suffered any pain or discomfort during or after the accident, you are entitled to compensation for that pain or discomfort.
This type of non-economic damage is usually caused by more serious accidents and is meant to compensate an injured party for the psychological impact of the accident, resulting injury, or both. Such compensation can be awarded for fear, anxiety, and sleep loss.
Loss of Enjoyment
When the injuries that you sustain in an accident are so severe that they keep you from enjoying day-to-day pursuits, like hobbies, exercise, and other recreational activities, you may be entitled to receive “loss of enjoyment” damages.
Loss of Consortium
Loss of Consortium in personal injury cases is recoverable when the injured person was legally married. These damages are awarded in the event the injury to one spouse has a negative impact on the other to enjoy the marital relationship. Things like loss of companionship, or the inability to maintain a sexual relationship would be considered.
Non-Economic Damages Caps
Some states limit the amount that can be recovered in the form of non-economic damages. Maryland is one of these states.
Maryland non-economic damages caps are imposed by Maryland Courts and Judicial Proceedings Articles § 11-108 (non-medical malpractice cases) and § 3-2A-09 (medical malpractice cases).
As of October 1, 2016, the following caps on non-economic damages apply:
The jury in a personal injury or medical malpractice case is not told about these limits (caps) on damages. Instead, the jury awards an amount it believes fairly compensates the injured person for his/her non-economic damages. If the jury awards more than the cap limit, the award is reduced by the Court after the jury is dismissed. So, even if the jury in your case thinks you should receive $5,000,000 for your pain and suffering, the court will reduce that to $830,000.
Personal injury attorneys have challenged the legality of the Maryland Damages Caps many times. However, the Maryland Appeals Courts have continuously found them to be legitimate. Thus, the damages caps will likely remain in Maryland unless or until these laws are changed by the State Legislature.
Punitive damages are awarded to the injured party when the conduct of the defendant is deemed to be egregious. Punitive damages are intended to punish the defendant and to act as a deterrent against future like behavior. Punitive damages are awarded in addition to compensatory damages.
The basics of Maryland Punitive Damages Law.
As these cases illustrate, punitive damages are almost never allowed in Maryland personal injury cases. The “malicious intent” of the defendant that is needed to claim punitive damages is extremely difficult to prove. Even when these damages are awarded, the appellate courts tend to overturn them. Finally, one must be very careful about claiming punitive damages because the conduct necessary to prove them will often negate the defendant’s insurance policy, leaving you to try to collect your damages from the defendant’s own money.
How Can Your Actions or Inactions Affect a Damages Award?
An injured person’s role in causing an accident or failure to receive proper treatment after being injured can diminish the amount of damages available in a personal injury case.
Most states adhere to a “comparative negligence” standard. This means that, if you, as the injured party, are found at fault, even partially, for the accident that caused your injuries, your degree of fault may reduce the amount of damages that you will be awarded.
A handful of states, including Maryland, follow the concept of “contributory negligence” in personal injury lawsuits. If the injured party is deemed to have caused the accident to any extent, the person will not be able to recover any compensation at all.
After the Accident: Failure to Mitigate Damages
In most states, it is expected that the injured party in a personal injury case will take reasonable steps to “mitigate” or minimize the financial impact of the harm caused to them by the accident. If the injured party fails to get the necessary medical treatment after an accident, fails to get treatment within a reasonable amount of time following the accident or chooses to not follow a doctor’s orders regarding treatment, as the result of any of which the plaintiff suffers additional harm, a damage award may be significantly reduced.
Judges and juries make the ultimate decision regarding failure to mitigate, contributory and/or comparative negligence. However, these issues are discussed by lawyers and insurance claims representatives when they are negotiating a settlement or trying to value a personal injury case. You should be aware of whether evidence of any of these issues exists in your case. Otherwise, you will not be able to intelligently evaluate your case value, risk of trial, or the reasonableness of any settlement offer.
Over 400 people die every day in the United States from accidental injuries. In 2018, unintentional injuries became the third leading cause of death for the first time in history, only beat by heart disease and cancer. According to the National Safety Council (N.S.C.), 47.2 million Americans reported injuries in 2017. Of these, 169,936 resulted in fatalities, and 100 percent of these deaths were preventable.
Maryland has some of the best medical facilities in the nation. But not every hospital is up to par. In the biannual Leapfrog Hospital Safety Grades Report released last week, Maryland hospitals ranked 30th across the country for health and safety.
Here in Maryland, it’s homecoming season. I have three teenagers. Plans are being made for “the ask” (the over-the-top production of how one goes about asking their chosen date to attend) “the dress”, (self-explanatory) and “the ride” (who will have the most memorable limo arrival). All harmless high school fun, right? And the limo, while it may be pompous, does hold a certain “well, at least they won’t be driving” attraction for us worried parents, right? Maybe not.