Broadly, “damages” refers to the amount of money that may be awarded to the plaintiff in a lawsuit. Damages are designed to make the plaintiff whole again and place the plaintiff in a position as if the negligent conduct not occurred. In most instances, damages are not intended to punish the defendant. Damages encompass not only medical expenses incurred, but past and future financial losses, suffering, mental anguish, disfigurement, humiliation, inconvenience, diminution of earning capacity, and future medical treatment.
Most personal injury damages are classified as “compensatory,” meaning the intent is to compensate the injured person for what they lost due to the accident or injury. Compensatory damages include special damages and general damages. Special damages are quantifiable and normally include medical bills, past and future lost earnings, and damage to property. General damages include pain, suffering, and mental anguish. Together, special damages and general damages comprise compensatory damages.
The primary driver of most personal injury actions are the plaintiff’s medical bills. The face value of the medical bills is the value that is used for purposes of damages. In Virginia, the jury is not instructed about insurance or third party payers. This is called the “collateral source rule.” That means that the original face value of the bill is used to assess damages relating to medical bills. A plaintiff’s lost wages can be calculated using their typical wage multiplied by the number of hours they missed as a result of the accident. Diminution of earning capacity, however, is more difficult to calculate though it is based on the same principles. If a plaintiff suffers a traumatic brain injury and can no longer work in his or her chosen profession, that plaintiff is entitled to compensation for that lost opportunity. That means not only receiving compensation for specific past and future lost wages, but also compensation of a more general sort for the loss of the ability to continue in that plaintiff’s chosen field.
In addition to compensatory damages, in some specific instances, a plaintiff may be entitled to punitive damages, depending on the outrageousness of the defendant’s conduct and the defendant’s conscious disregard for the rights of others. Punitive damages are intended to punish the defendant and act as a deterrent to others. For example, punitive damages may be available where there is evidence that the defendant was driving while extremely intoxicated. In Virginia, punitive damages are rare.