Calculating Damages for a Catastrophic Injuries in New Jersey
Proven trial lawyers explain the crucial elements of pain and suffering claims
A catastrophic injury is a life-altering condition. One day, you are leading your normal life, the next you are coping with severe pain and disability with an uncertain prognosis for recovery. If someone else is responsible for the sequence of events, you are entitled to compensation for your losses. But what do your losses amount to? In this article, we’ll explain the basic steps attorneys take to determine what is a fair damage amount for a severe injury.
Two basic categories: economic and non-economic
In a personal injury case, there are two basic categories of damages:
Economic — These are the losses that can be readily measured in dollars and cents, such as:
- Medical bills
- Rehabilitation costs
- Cost of personal care services
- Prosthetics and medical equipment costs
- Costs to modify a home or auto to accommodate a disability
- Lost earnings due to inability to work
- Costs associated with job retraining
The tricky part of this calculation is that your expenses related to your injury may not have a certain endpoint. You may require ongoing medical treatment or personal services. You might continue to lose income because you are permanently disabled, or because you are forced to change careers or take a lesser paying position. Thus, part of your economic damages are future losses.
The rule about future losses is that they cannot be speculative. Whatever you claim as a future loss must be highly likely to occur because of the reasonable expectation that your condition will remain problematic. This requires the expert testimony of medical professionals, as well as accurate projections of future losses/costs by financial experts.
Noneconomic — These are the real but less tangible losses that are harder to quantify. These include:
- Physical pain — An accident victim’s damages should compensate for all conscious pain from the injury event to the point of full recovery. In catastrophic injury cases, a victim may endure chronic pain for the rest of their life. This subcategory often involves expert testimony from medical professionals on the extent of the victim’s pain and a prognosis for pain reduction over time.
- Mental suffering — This is the weight of psychological pain the victim feels as a result of the injury. This is also felt on a daily basis, and the natural question is, “How long will it take for this suffering to subside?” This subcategory is highly personal and subject to individual circumstances. For example, the impact of a lost limb would be different for a retired gardener than for a teenage athlete. The mental suffering from facial scarring would be different for a middle-aged, married man than for a single, female graduate student.
- Loss of quality of life — The subcategory comprises the negative impact of the injury on the victim’s general, day-to-day existence. A key question is how much personal autonomy has the individual lost? Can the person continue to be self-supporting and exercise self-care? Has the person become dependent on others for personal tasks? How negatively have bodily functions been impacted? How energetic and alert is the person compared to their pre-accident self?
- Loss of enjoyment of life — Here, we get more specific about the loss of experiences that used to enrich the victim’s life, but are now unavailable. Again, these losses are specific to the facts of the case. For example, a father of three young boys who can no longer play sports with them or coach them has lost significant enjoyment associated with being a parent. If the victim had an enriching hobby or activity they can no longer pursue, or a special talent they had cultivated but can no longer use, or an aspect of a relationship that’s been erased, they’ve lost enjoyment of life.
- Loss of consortium — Many injuries can cause intimate dysfunction or a loss of romantic chemistry. If, due to an injury, a person can no longer engage in marital relations with a spouse, the loss is compensable.
Taken altogether, these damages are labeled pain and suffering. The next challenge is to put a dollar amount on these intangible losses.
Methods of calculating pain and suffering
Every case is going to be slightly different, but plaintiffs and defendants in accident cases often use one or two methods for calculating pain and suffering damages:
- Per diem method — If pain and suffering were a simple calculation, we would ask a reasonable person how much money they’d be willing to take to endure the victim’s condition for one day, then multiply that price by the number of days in the victim’s expected lifespan. Unfortunately, that calculation could lead to a number that is astronomically high, so a damage award is likely to be much less. Nevertheless, the per diem method provides a noteworthy benchmark.
- Multiplier method — Using this method, attorneys apply a scale, usually of one to five, for the magnitude of pain and suffering. Mild injuries are ones and the most severe are measured as fives. We then take the total of economic losses and apply that factor to arrive at the pain and suffering amount. Again, there are limitations to this method, and there are certainly injury cases where attorneys used a factor of 10 times the economic losses to arrive at the pain and suffering amount.
The limitations of these methods are another reason to retain an experienced attorney for your catastrophic injury case. A lawyer who has a track record will have practical knowledge of settlement amounts for similar injuries, even if the settlements have not been made public. This knowledge provides additional leverage to secure a settlement you deserve, or indicate when it is time to take a case to trial.
The personal injury attorneys at Razi & Giampa Law in Paramus represent accident victims with serious injuries in Bergen County and throughout New Jersey. Contact us today.
