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Valuing Damages in a Massachusetts Personal Injury Case

A person who has been injured through the fault of another party is generally entitled to several different types of damages. Those include lost wages, medical expenses, pain and suffering, loss of enjoyment, and loss of earning potential that's likely to occur in the future. Basically, what our legal system is attempting to do is to reimburse the injured party for the losses already incurred and those that will be incurred as a result of the negligence.

One typical issue in a personal injury case is that the insurance coverage is inadequate to reimburse the injured party, also known as making them whole. It is important to identify as many policies as possible, along with other potential means of recovery.

Let's start with medical expenses: these are relatively easy to calculate. Every expense that the client is incurring is documented by the the treating physicians, the hospitals, and any other medical provider. There are bills automatically created and if any third party pays all or portion of the bills, there is also an accounting created of that immediately upon payment. (In the instances of either a private medical insurance provider or a government entity, such as Medicare.) The payment of medical expenses related to a personal injury creates an automatic lien in the case of Medicare and creates a potential lien in the case of private pay insurance.

That said, medical expenses are pretty simple and straightforward. The injured party is usually just pulling together all the medical bills, requested directly from medical providers, and compiling an accounting. There are potential issues when there are pre-existing conditions that are being treated simultaneously through the same medical providers, but even these issues are fairly easily overcome.

Lost wages are also fairly easy to calculate. Usually, we are looking at the date of incident through the date the client returns to work. In many cases, there is a clear stop and start time: there is a date on which the incident occurs; there is a date, typically on or before that day, on which the client last worked; and then there is a date on which the injured party ultimately is rehabilitated to the extent he or she can return to work.

For most people, a simple analysis of income before the accident and then after the injury provides a straightforward figure of what the lost wages ultimately are. Obviously, that's easiest when the party with the injury has been working a set number of hours per week, and it is the same amount of hours per week every week for an extensive period of time prior to the accident. If that's the case, we can easily see what the injured party's lost wage damages from the day they go out of work through the date they return. Even for clients with injuries who return to work on a part-time basis due to a resulting work restriction, we can still pretty easily do the math and figure out the difference.

Cases get more complicated on the issue of lost wages when the individual is either self-employed or works sporadic hours. In those cases, we would want to find consistency, either on a month-to-month or seasonal basis. Basically, we are trying to establish our evidence supporting our case for our client's lost wages.

Pain and suffering is one of the more complicated areas of damage assessment in a personal injury case. Pain is subjective. You may feel that the pain from your injury is worth one number, but a jury of your peers may feel it's worth another number. Those numbers might be very far apart. You may feel you should be paid $1000 a day to endure the pain that you are currently in. The jury may feel you should be entitled to $50 a day to endure such pain. The jury will never feel your physical pain. There is no way for you to adequately and effectively express to the jury what your level of pain is.

If you have established your credibility in your litigation, you may be able to communicate more effectively an accurate level of pain to the jury. If you have failed to establish credibility, the jury may feel you're exaggerating your pain for the purpose of getting more damage money. Remember, litigation is an adversarial process. While the plaintiff's counsel will be arguing that the plaintiff's pain and suffering damages are as accurate as possible, opposing counsel will be trying to poke holes in the plaintiff's argument. For example, opposing counsel may look to your activities in order to try to establish that you clearly are in as much pain as you claim to be- otherwise, you wouldn't be doing X, Y, or Z.

Aside from establishing pain-and-suffering, establishing future damages is one of the most difficult processes. Essentially what we're asking the jury to do is to believe the experts as to whether the plaintiff will be in pain and either out of work or at a reduced work ability for some time into the future. This is oftentimes the most adversarial and contentious argument in a personal injury jury trial. Defense counsel will focus on limiting this type of damage. That is because whatever figure is assessed is going to be multiplied for an extended period of time, potentially through the point of the plaintiff's life expectancy. Each side of the litigation generally argues this point extensively. The same goes for future lost wages.

Sometimes the damages are straightforward and other times difficult to ascertain, even years into the case. It is obviously important that you have a personal injury attorney who is experienced in dealing with these types of cases, so that you avoid your attorney making a mistake and erroneously resolving your case for much less than it is actually worth. It is important, for this reason, to consult with a personal injury attorney early on in your case, preferably soon after the accident occurs and before you speak with an insurance adjustor.

If you have any questions about damages or personal injury law, contact our offices. Call 978-225-9030 during business hours or complete a contact form online for a free consultation.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

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Address: 15 Court Square, Suite 800, Boston, MA 02108