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DAMAGES FOR PERSONAL INJURY UNDER TEXAS LAW

Personal InjuryIf you are injured because of the negligent acts or omissions of somebody else, perhaps a careless driver, a careless doctor or a careless dog owner you may be entitled to money damages to compensate you for your injuries. There are many ways in which Texas Law allows a jury to compensate personal injury victims. Some of those ways are obvious and some are not. In the article below, I will describe in summary fashion the ways that personal injury victims are generally compensated under our Texas civil jury system.

  1. Medical Bills

The most obvious and probably most well known type of monetary damage that may be awarded by a jury are medical expenses. In order to recover a medical expense, it must be shown that the expense was reasonable. That means that it falls within the range of expenses typically charged by other medical providers in the Dallas/Ft. Worth area. Additionally, it must also be shown that the expense was medically necessary. That part of the equation is fairly self explanatory (i.e. you don’t get a foot x-ray for a head injury!). Finally, it must be shown that the incident, usually an accident or some other occurrence (car wreck, dog bite, botched surgery, fall etc.) caused the injury that required the medical treatment.

While causation can be shown through the patient’s own testimony and records, the medical necessity and reasonableness of the charges must be shown through the testimony of the medical provider themselves. This can usually be done through affidavit, but occasionally requires the actual testimony of the treating physician.

One aspect of these damages that most people are not aware of involves the application of health insurance and/or some other 3rd party payer, such as Medicare or Medicaid. When a 3rd party payer pays a medical expense related to an accident or occurrence, there will normally be an adjustment made to the bill in addition to the payment. In the case of Medicare and Medicaid these adjustments can be substantial, sometimes as much as 90% of the entire bill. In the case of private health insurance, the adjustments are generally in the 30-40% range. Either way, a jury is not permitted to award money damages for that portion of the medical bill that has been adjusted, and may only award money damages for that portion of the medical bill that has actually been paid plus whatever balance may be owed by the patient.

This is fairly unique to Texas, and was the result of legislative mistake. While an entire article could be devoted just to this topic, suffice it to say that the automobile insurance companies and other injury insurance companies have benefited greatly from this legislative mistake.

  1. Physical pain and mental anguish

Most people are familiar with money damages for pain and suffering. In Texas, this referred to as physical pain and mental anguish. While they are two separate elements of damage, they are generally grouped together under one sum for the jury’s consideration.

The amount the jury may award for physical pain, if anything at all, is entirely up to the jury. Juries in Texas tend to be very conservative when it comes to awarding money damages for physical pain, especially in cases where the injury is not readily visible, such as in strain and sprain injuries to the neck and back. While the pain experienced by the patient is very real, it is often difficult for the jury to fully comprehend the pain.

Mental anguish is a level of emotional discomfort that does not rise to the level of emotional distress, but is more than just mere worry or concern. It is difficult to describe exactly what mental anguish is and what mental anguish is not, but mental anguish is normally present in cases involving personal injury because people that are injured have a mental component to the physical pain they endure. This is especially seen in folks that become depressed and easily agitated or moody because of their pain, which in turn which affects their familial relationships. Again the amount the jury may award for mental anguish, if any, is entirely up to a jury.

  1. Impairment

Personal injuries will often render a person much less active and unable to do the things that they used to do on a daily basis. Such activities may include the regular activities of daily living such as dressing, bathing, eating, combing ones hair, and driving. These activities may also include recreational activities such as sport, shopping, traveling, and socializing

If a personal injury is severe enough to limit one’s activities as noted above, the jury is entitled to award money damages for the impairment, even if temporary. In a nutshell, impairment damages are awarded by a jury for a loss of enjoyment of life or the loss of quality of life. Because they generally cannot be quantified, that is determined by a specific number or dollar value, the jury has discretion to award as much or as little as they deem fit, based upon the evidence.

  1. Lost Wages and loss of earning capacity

A jury may award additional money damages for lost wages and/or loss of earning capacity. While they seem to be one and the same, these two elements are slightly different. Technically, lost wages are generally not part of the damages a jury may award in Texas, so they are referred to damages for loss of earning capacity.

If an injury has caused a person to miss time from work they are entitled to be compensated for the time they missed, regardless of whether their employer was generous enough to pay them for that time off.

Likewise, if an injury has reduced a person’s ability to work in the capacity for which they were trained, and they are therefore making less money as a result, they are entitled to loss of earning capacity money damages. While the jury does have some discretion in whether to award these damages, the amount is usually fairly predictable. Of course, if an injury results in a complete and total disability, then the personal injury victim is entitled to the present value of all of the money they would have earned in their lifetime had they not been injured. These numbers can be staggering.

  1. Past/Future damages

All of damages described above are awardable by the jury for both past, which is the time between the day of the occurrence and the day of the jury’s award, and the future, which is the day of the jury’s award into the future, usually measured by standard life expectancy. If an injury to a young person is permanent and serious, the award of damages in the future can be very significant. In fact, every large jury verdict I have obtained has been predominantly made up of an award of damages in the future such as impairment, physical pain, and/or loss of earning capacity.

The award of damages past and future will be separate awards, and they will be considered separately by the jury. As a cautionary note, juries do not generally award future damages lightly. They require significant evidence that the injury is not only permanent, but will produce the permanent consequences that would entitle the injured party to a large sum of money going into the future.

Of course, if medical expenses are expected in the future as well, those would also be awarded by the jury but based upon the testimony of the treating doctors.

In summary, the typical injury victim is entitled to money damages for reasonable and necessary medical expenses in the past and future, physical pain and mental anguish, impairment in the past and future, loss of earning capacity in the past and future, pre-judgment interest and taxable court costs. The litigation team at Bailey & Galyen are experts at collecting the appropriate evidence and presenting it to a jury to maximize all of the damages that our personal injury clients are entitled to.  For more information please go to our website www.pinjury.com

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