Non-economic or “general” damages are most commonly referred to as “pain and suffering,” but the concept includes so much more. It includes physical pain and emotional pain, both in the past and future. It includes disability, disfigurement, and loss of enjoyment of life. It includes fear, frustration, worry, doubt, uncertainty, and sadness. The law provides no formula for placing a dollar value on any of these “intangibles,” and so it is ultimately up to a jury to determine what they are worth. If you want to settle your claim, you and the insurance company will have to agree on the value of your pain and suffering. In order to maximize your claim, a good attorney will get to know you and how your injuries have affected your life. He will then make sure the insurance company knows exactly how your life has been turned upside-down, and he will seek to get you a recovery for each type of non-economic damage recognized by the law.
In this series of blog posts, I discuss different elements of non-economic damages: what they mean, how they are calculated, and how they can determine the outcome of your claim. In part 1 of this series, I discussed physical pain and mental anguish. In part 2 I discussed the concepts of disability, disfigurement and loss of enjoyment of life. In this post I will address recovering non-economic damages for injuries to a loved one.
DAMAGES FOR INJURIES TO A LOVED ONE
Even if you weren’t the one injured, you may still be entitled to a recovery for non-economic damages resulting from the injury to a spouse or parent. Historically, loss of consortium claims were derived from the husband’s presumed property right to the “services” of his wife. Although the claim included the wife’s contributions to the household, it was generally understood to be a loss of sex when the wife suffered an injury.
In modern times, the loss of consortium claim has been extended to the impact an injury has on the relationship between spouses, or between a parent and a child. It includes emotional support, love, attention, care, services, companionship, and assistance. As a person who has been injured, but who has also been the spouse of an injured person, I can tell you that it’s sometimes just as hard to be the spouse. While the injured partner is suffering both physically and emotionally, the uninjured spouse has to take up the slack by doing more household chores while at the same time being emotionally supportive. All the while, the injured spouse has little energy to give the emotional support required by any relationship, and the relationship can be strained or even broken. I have seen several relationships end because the uninjured partner could not tolerate being with the injured person any longer. We often suggest some kind of couples counseling in situations like this, but sometimes, the impact on the relationship is too great to be repaired.
In the case of an injured parent, a child may have a claim for loss of love, care, companionship, and guidance. This claim is separate from a claim a child might have for the wrongful death of a parent.
As you can see, what we commonly refer to as “pain and suffering” actually includes more. It can include physical pain, mental anguish, disability, disfigurement, and loss of enjoyment of life. If you have been injured in an accident, take a moment to consider what elements of non-economic damages you have suffered, and make sure to share them with your attorney. You should include a description of your pain, as well as any activities that have been limited or otherwise affected by your injuries. I find it sometimes helps to divide the effects into broad categories such as home, work, and social, and then to get as specific as possible within each category. Ultimately, the more detail you can provide about how your injuries affected your life, the better chance your attorney has to maximize your recovery from the insurance company.