Calculating the amount of damages in a personal injury case can be complicated, especially when there are more “intangible” damages in play, such as pain and suffering or emotional anguish.
Damages in personal injury cases are split into two categories: special damages (a.k.a. “economic” damages) and general damages (a.k.a. “non-economic” damages). In a typical personal injury case, the injured person is eligible to recover damages for:
- Medical care (both present and future) and related expenses
- Property damage
- Missed time at work and decreased earning capacity
- Pain and suffering
- Permanent disability or disfigurement
- Loss of family, social, and educational experiences
- Emotional damages as a result of the above
Insurance adjusters and personal injury attorneys are known to use a “damages formula” to estimate the overall cost of your injury in the early stages of negotiations. Typically, the adjuster will start by adding up all of the injury-related medical expenses.
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After determining the value of your medical expenses, the adjuster or attorney will apply a multiplier to account for pain and suffering, permanent disability, and other non-economic damages. When the injuries are relatively minor, the adjuster or attorney will multiply the amount of medical special damages by 1.5 to 3 times. If the injuries are more severe, more painful, or more serious, the adjuster can multiply it by 5 times or more.
Damage awards increase dramatically when your injuries are residual or permanent. In other words, you are eligible to recover larger damage amounts if you can prove that the physical effects of the injury will linger for many years. A common permanent injury is scarring; if you suffered particularly large or obvious scarring, your damages will increase significantly—particularly if the scarring is in a very visible place, such as the hands, face, or neck. Other injuries have a very high likelihood of causing permanent pain or discomfort, such as an injury to a disk in the spine; a narrowing, displacement, or other damage to a vertebra; or a dislocation, ligament, or cartilage injury to any joint. These injuries tend to cause pain throughout life, as well as possible lack of mobility.
The formula of “medical damages multiplied by a certain number” is only the starting point for negotiations. With each individual case there are a million variables, all of which can affect the final payout amount. Personal injury attorneys and insurance adjusters can choose a number along the multiplier scale, depending on the extent of your injury and certain other factors. Some other factors involved in the decision include:
- The longer the recovery period from your injuries, the higher the damage estimate
- The more painful the type of injury suffered, the higher the damage estimate
- The more invasive and longer-lasting your medical treatment, the higher the damage estimate
- The more obvious the medical evidence of your injury, the higher the damage estimate
- The more serious and visible any permanent effect of your injury, the higher the damage estimate
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It is important to note that New Jersey is a “modified comparative negligence” state. This means that you are still eligible to recover damages, even if you were partially at fault for the accident or injury. However, your total damages will be reduced by the percentage of fault attributed to you. (For example, if you were found to be 10 percent at fault in a $100,000 car accident and the defendant was 90 percent at fault, you would only be eligible to recover up to $90,000.) You can be up to 49 percent liable in a New Jersey personal injury case, but if you reach 50 percent liability, you will be unable to recover damages.