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Placing a Monetary Value on a Serious Injury: Surgery and Punitive Damages

Serious Injury Damages

Ruptured discs, bone fractures, and injuries resulting in scarring are generally compensated more generously than are soft tissue injuries. Insurance companies more often than not suspect that soft tissue injuries are imagined or exaggerated. Herniated discs, fractures, and scarring in and of themselves prove injury. These types of injuries are common after a car or fall-down accident. These cases frequently settle for relatively large sums of money.

Example: In an urban area, an individual in his 20’s who suffers a herniated lumbar disc that does not compress upon the nerves and does not require surgery is likely to bring a settlement in the range of $30,000 to $50,000. In a less urban area, perhaps the range would be more like $20,000 to $40,000.

If the herniated disc compresses on the nerve roots, this adds value to the case because it indicates that the plaintiff is in considerable pain. I would very roughly estimate that a herniated disc with compression is worth at least $10,000 more than one that does not compress on the nerve roots.

Surgery Damages

If surgery is required, the value of the case goes way up. Whereas a noninvasive procedure, like ultrasound therapy, might add a certain value to the case, surgery is more extreme since it involves cutting of tissue by knife, scalpel, or other sharp instrument. Surgical removal of a herniated disc might increase the value of the case by $40,000 or more. The success or lack thereof of the surgery is also very important. If additional surgeries or other forms of treatment are needed, the value of the case increases accordingly.

Enhanced Damages

Please understand that all these estimates are very, very rough. They are included simply to help you understand the concept of enhanced damages. Each and every factor that weighs on damages either enhances or detracts from the value of the case in some tangible way. Whether a compression, for example, adds $10,000 to the case or $30,000 depends on the specific case and how all the factors fit together to make up a whole case.

Punitive Damages

Punitive damages are assessed as a means of punishing the defendant for such conduct. Generally, they are recoverable when a defendant’s actions are outrageous, malicious, wanton, willful, oppressive, or show reckless indifference to a party’s safety. Your state law will define what type of conduct will qualify for punitive damages.

You cannot expect to collect punitive damages in a garden-variety car accident or slip-and-fall case. If, on the other hand, the other driver intentionally rammed your car, punitive damages would be appropriate. A drunk driver who causes an accident may have to pay punitive damages. A parent who lets an underage, inexperienced driver use the family car may have to pay punitive damages to the victims of that child’s negligence.

Most insurance policies have language that exempts the company from having to pay punitive damage awards. It is considered bad public policy for people to be able to insure themselves against acts that justify punitive damage awards. The thinking is that if people could insure themselves against such acts, they would be more likely to commit them.

If the insurance company will not pay the punitive damage aspect of an award, you will have to try to collect that amount directly from the defendant. This is usually quite difficult. (See Chapter 11 for a discussion of collecting from an uninsured defendant.)

The best-case scenario for collecting on a punitive damage award is if a wealthy individual commits such an act. For example, any plaintiff’s lawyer would love to represent a person who was assaulted without justification by an out-of-control millionaire athlete or entertainer. You could expect such a case to have very significant settlement value.

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