While our friends who practice criminal law deal with outcomes of time (such as time behind bars, time on probation, length of time driver’s licenses is suspended, on the civil side our remedy is most commonly measured in an outcome of money.

There are many reasons for bringing a lawsuit, but when the lawsuit surrounds an action in tort law, the reason is generally to obtain some type of monetary compensation for that injury. This is what is termed as “compensatory damages.”

Compensatory damages are a form of “corrective justice,” which essentially means these types of damages seeks to correct or compensate the plaintiff for their injury. This evokes an overarching theme of remedies at law, which is to restore the plaintiff to his “rightful position”, meaning that these compensatory damages will ideally put the injured person back in the position they were in before the conduct of the defendant occurred which caused harm to the plaintiff.

The three categories of compensatory damages are medical expenses, lost earnings and earning capacity, and pain and suffering. 

Medical Expenses

In the first category of compensatory damages, plaintiffs are entitled to compensation for their past medical expenses of diagnosing and treating the injuries which resulted from the tort. This includes doctor or physical therapy visits, x-ray and surgery bills, and sometimes even an additional injury which results from malpractice of the doctor. However, in Missouri this has become more complicated due to the erosion of what is called the “collateral source rule” (Link to Jill’s Blog).

Future medical care is also compensable, which can be more difficult to calculate, but is done so by estimating the likelihood of and cost of future treatment.  At trial, Plaintiff attorneys often lean on doctor’s opinions to offer proof of what their further medical expenses will be. For example, the jury could conclude a person who suffered a herniated disc will need future back surgery and will have to assign a value for pain, lost earnings, and therapy associated with this back surgery even though it may happen 10 years later. A medical expert is introduced to help assign a value to these factors based on their knowledge of the profession/industry.

Lost Earnings and Earning Capacity

Lost wages are calculated by tracking the amount of lost past earnings from the time of the injury to the time of trial. This is proven by submitting a record of the plaintiff’s earnings before their accident or injury occurred. However, sometimes an injury can be significant enough to where it keeps someone from returning to work at all. Similar to future medical expenses, future earning capacity is also more difficult to calculate. To do so, the jury will have to determine how long a plaintiff could have worked if they had not been injured. This includes factors like life expectancy and occupational outlook. The jury may also have to consider what type of work the plaintiff would have done if he had not been injured.

Pain and Suffering

Pain and suffering damages include compensating plaintiffs for emotional distress. These are sometimes referred to as special or noneconomic damages. Certain states have limited the amount of damages plaintiffs can recover for pain and suffering by putting a caps on the amount which can be recovered.  In Missouri, we join 38 other states and the District of Colombia[1], as states who do not have caps on general personal injury recovery  pain and suffering damages.

Yet, measuring someone’s pain in a dollar value can be difficult. How do you measure suffering or pain? Sometimes this can be done by showing a client’s quality of life and the subsequent reduction in that quality of life after their accident or injury. The jury needs to know if a client was very active, who loved hiking or bike riding, and now is unable to walk down their driveway without significant pain. A husband or wife of an injured person can also testify as to how much worse their spouse’s condition has become since the accident, and even how it has affected them as well.

At Bollwerk & Associates, we have a very detail-oriented intake process designed to obtain as much  information as possible about the damages our clients sustain in accidents.

Jill S. Bollwerk
Helping St. Louis area residents with personal injury, workers' compensation & insurance appeals/disputes.
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