Damages in a PI Case

What are the different types of damages in a personal injury case?

Personal injury cases are made on the basis of three factors (commonly referred to among personal injury lawyers as the “trifecta”). These factors are: liability (the wrongfulness of the conduct of the other party/potential defendant), damages (the extent of the damages the plaintiff/victim suffered), and the “pocket” (ability of the defendant, or their insurance company, to actually pay). The viability of a personal injury case generally depends on these factors.

A large and very important job of a personal injury attorney is to show the defendant’s representatives the extent of the damages – the best personal injury attorneys in the United States and in Pennsylvania do this masterfully and are able to put an injured person in the best position possible to recover maximum value for their injuries.

In a personal injury case in Pennsylvania, the types of damages that can be recovered include both economic and noneconomic damages. Economic damages cover past and future loss of earnings and earning capacity, medical and dental expenses, and property losses. See § 8528. Limitations on damages, § 8553 Limitations on damages. Noneconomic damages include pain and suffering, loss of consortium, and disfigurement. See § 8528 and Pennsylvania Rule of Civil Procedure 223.3, Conduct of the Trial; McManamon v. Washko, 2006 PA Super 245.

Additionally, punitive damages may be awarded in cases involving willful or wanton conduct or reckless indifference to the rights of others, particularly in medical professional liability actions. See § 1303.505, Punitive damages. These damages are intended to punish the defendant or send a message to the market/society, rather than to simply compensate the plaintiff. Colodonato v. Consolidated Rail Corp., 504 Pa. 80. Punitive damages are relatively rare and generally require a showing of a crime being committed or outrageous conduct that is beyond simple negligence. In every case where punitives are alleged, it will be a point of contention and a defense attorney will contest it whenever possible.

An explanation on some of the damages in personal injury cases is as follows:

Past and future loss of earnings/earning capacity

Earnings and earning capacity are considered an economic damages, and generally just covers how much the individual plaintiff lost in terms of work due to their injuries. So, if a car accident caused you to miss work now or in the future you could potentially claim economic damages. This type of damage can get very complex – requiring the use of vocational experts who can opine that, had the accident never happened, the plaintiff would have made far more money working in the future.

Past and future pain and suffering

This is the most speculative and difficult element of damages to calculate, but practitioners generally focus on two factors: (1) duration and (2) extent of the pain. Pain and suffering is considered a “non-economic damage” and therefore would not be recoverable if you are limited tort involved in a car crash. Furthermore, this factor can be complicated by a previous injury in the same location. Often, personal injury cases hinge on past and future pain and suffering and a large part of the plaintiff’s argument may be that the pain is worth a high sum of money. At the end of the day, this determination is up to a fact finder (jury, judge, arbitrator, etc.).

Reasonable value for past and future medical expenses

Medical bills (both past and future) are generally recoverable in a personal injury case. If the bills and medical treatment relates directly to the injury sustained your attorney should ask for reimbursement of these bills. A major practice pointer for personal injury cases is arguing which bills are applicable to the injury and which are not. So, for example, medications related to diabetes would probably not be related to a car accident involving a back injury.

Another aspect to consider is medical liens from DHS (Department of Human Services), Medicare, the VA, and various health insurance providers. These providers should be notified if there is a claim so that you can gather these liens and assert it in a demand to an insurance company or defendant. Some of these liens (such as government liens) are statutorily required to be paid, so an attorney may be running afoul of the law if you fail to notify these organizations and/or you deliberately attempt to skip out on them on behalf of your client.

Even with these bills there is room for negotiation. A common tactic is to ask for an “Act 6” number, which is essentially bargaining down a medical bill to what Medicare would pay for the service. Medicare has a table of charges and billing codes related to almost every single medical treatment and procedure.

Future medical bills can be quite speculative and generally require an expert to show the extent of the treatment necessary and future bills.

Lastly, you should be aware of what is known as personal injury protection (or PIP coverage) in a motor vehicle case. PIP coverage is usually the “first” amount of money to be used for medical bills related to a car crash/car accident, and is provided by your own insurance company. Typically, in Pennsylvania, this amount is $5,000.00 (as of 2024), which can get exhausted fairly quickly. If PIP has been “exhausted” those excess bills can go to the healthcare insurance provider or, if the insurance provider does not recognize a treatment provider, those bills may be asserted as a medical lien on a case.

Disfigurement

Disfigurement is typically scars, burns, or the loss of limbs/body parts due to an incident. Like pain and suffering, this damage can be highly speculative and generally mixes in with the other types of injuries, such as wage loss or future medical expenses. Importantly disfigurement allows your attorney to easily get around a limited tort threshold in a motor vehicle accident.

Loss of consortium

In Pennsylvania, a loss of consortium claim for damages is recognized as a separate and distinct cause of action from a claim for bodily injury. It arises from the marital relationship and is based on the loss of services, society, and conjugal affection of one's spouse due to the spouse's injury. This type of claim does not always involve a bodily injury to the claimant but rather an injury to marital expectations. Anchorstar v. Mack Trucks, 533 Pa. 177. Consortium is why, in some personal injury cases, plaintiffs’ attorneys opt to include the spouse of the injured party as a claimant. Consortium is highly speculative and is considered non-economic damage.

Wrongful death/survival

A wrongful death claim is brought by the personal representative of the decedent's estate for the benefit of the decedent's spouse, children, or parents. This type of claim seeks to compensate these beneficiaries for the pecuniary losses they have sustained as a result of the decedent's death. Damages recoverable in a wrongful death action include the value of the services the deceased would have rendered to the family, as well as funeral and medical expenses McMichael v. McMichael, 663 Pa. 171. These damages can be speculative.

In contrast, a survival claim is brought by the personal representative of the decedent's estate to recover damages that the decedent could have claimed had they survived. This action is a continuation of the decedent's personal injury claim. Damages in a survival action include the decedent's pain and suffering, loss of gross earning power from the date of injury until death, and loss of earning power less personal maintenance expenses from the time of death through the decedent's estimated working lifespan McMichael v. McMichael, 663 Pa. 171,

Property losses

Lastly, for the purpose of this article, are property losses. These losses include where there was a motor vehicle crash and the claimant’s car was partially damaged or totaled. Usually, in a personal injury context, this is a separate claim/coverage from the bodily injury portion and is almost always resolved prior to the bodily injury portion of a personal injury case. Property losses are much more stable and definite than personal injury claims, so it is infrequent that insurance companies are willing to negotiate much on these terms unless you have decent evidence (as is common) that they are undervaluing the property loss or they have specifically omitted valuable things from the final assessment of property damages.