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“Claimant is entitled to recover the reasonable value of all medical expenses that have been incurred, and that are reasonably certain to be incurred in the future, as a result of the injury. To recover for past (already-incurred) medical expenses, claimant must prove: The amount of each claimed expense; That each of the charges was reasonable; That each of the services or supplies for which medical expenses are claimed was actually given and was reasonably necessary to diagnose or treat the injuries; and That the condition that necessitated each medical-related expense was a proximate (legal) result of the injury caused by defendant.

Plaintiff is entitled to recover the “reasonable cost” of past medical care necessitated by defendant’s tortious conduct. However, the fundamental purpose of compensatory damages is to make plaintiff “whole”—not to bestow a “profit” or “windfall.” Hence, “reasonable” compensation for past medical expenses may not exceed the amount actually paid or incurred—whether by plaintiff directly or by private insurance, Medi-Cal, Medicare, plaintiff’s employer or any “collateral source.” Stated otherwise, ‘a personal injury plaintiff may recover the lesser of (a) the amount paid or incurred for medical services, and (b) the reasonable value of the services.’

Plaintiff is also entitled to recover the reasonable value of working time lost on account of the injury. Thus, wages, commissions, bonuses and all other earnings and fringe benefits that claimant has lost, or probably will lose, are compensable damages elements.  Personal injury claimants are entitled to recover the gross amount of their lost income … regardless of whether their earnings or salaries would ordinarily yield a net, after-tax amount.

“Impaired earning capacity” damages are closely related to a loss of future earnings award; depending on the jury instruction given, it is often simply an alternative, albeit broader, way of compensating for future earnings loss. Technically, impaired earning capacity refers to the extent to which the injury interferes with plaintiff’s ability to advance to a better paying position or an alternative career; the award, in effect, compensates for injury to plaintiff’s earning power.

Ordinarily, the most “valuable” element of a bodily injury claim is the right to compensation for all “pain and suffering” plaintiff has sustained, and will endure, as a proximate result of the injury. These are plaintiff’s “general damages,” and may run far in excess of the “special damages” (e.g., earnings loss and medical expenses). “Pain and suffering” is a unitary concept, encompassing all the physical discomfort and emotional trauma occasioned by an injury. Plaintiff is entitled to compensatory damages for all physical pain suffered … and also for all resulting “fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal.”

Substantial or catastrophic injury cases often involve “intangible damages” other than ordinary pain and suffering, such as disfigurement, disability, impaired enjoyment of life, susceptibility to future harm or injury, and shortened life expectancy. Damages are awardable for the detriment plaintiff has suffered, and will continue to suffer, from an inability to “enjoy life” as plaintiff could have but for the injury.

Among the “life-style” impairments that might result from serious injury are: Inability to partake in routine activities: e.g., dress self, bathe self, feed self, drive a car, go on walks, shop, etc.; Inability to engage in recreational or social activities: e.g., tennis, bowling, skiing, jogging, hiking, dancing and other exercise; Inability to engage in normal family activities or “household services”: e.g., house cleaning, gardening, cooking, repair work, etc; Inability to pursue previously enjoyed hobbies or avocations; e.g., playing musical instruments, writing, painting, singing, etc; Loss of sense of taste or smell; Inability to provide care, comfort, society and protection to, or otherwise interact with, spouse and children: e.g., sexual incapacity or disinterest, inability to play with children, travel with family, etc.

Sometimes, however, a tortious act directly causes mental distress without any concurrent physical injury—i.e., plaintiff’s primary injury is emotional distress. The distress may have physical consequences, but the cause of action is not predicated on “physical injury” per se. A cognizable emotional distress cause of action entitles plaintiff to reasonable compensation for any fear, anxiety and other emotional distress suffered and/or to be suffered in the future (plus reasonable compensation for consequential financial loss). As with general “pain and suffering” damages in physical injury cases, there is no precise measure prescribed by law; rather, the jury is instructed to “use your judgment to decide a reasonable amount based on the evidence and your common sense.”

Plaintiff may recover compensatory damages for personal property loss (e.g., collision resulting in damage to or destruction of vehicle) proximately caused by defendant’s negligent or otherwise wrongful act or omission.

[California Practice Guide: Personal Injury [certain citations omitted]]


Post Author: lawofficesofjamesrdickinson