The damages that result from catastrophic injuries are usually more significant than the damages that result from a typical personal injury case. If you are a victim of catastrophic injuries sustained in an accident that wasn't your fault, it is essential to understand the compensation options to help you receive the compensation you deserve. If you have suffered an injury that qualifies as a catastrophic injury, it is essential to seek immediate legal and medical help because the effects of catastrophic injuries could last a lifetime. Waiting too long before you secure legal help could exacerbate your problems.
Injuries That Qualify as Catastrophic Injuries
A catastrophic injury is an injury that could leave you temporary or permanently disabled or ultimately prove to be fatal. Catastrophic injuries may result from accidents, explosions, and workplace injuries. Some accidents have little or no long-term effects. However, suffering catastrophic injuries in an accident could result in a lifetime of medical expenses. According to federal law 42 U.S.C. 3796b, a catastrophic injury is one whose consequences could prevent a person from performing meaningful work. You may be entitled to compensation if you suffer catastrophic injuries due to another person’s negligence.
An injury qualifies as a catastrophic injury if a victim suffers long-term or permanent pain or loss of the function or use of a limb or organ. The common types of catastrophic injuries include:
- Paraplegia or paralysis
- Spinal cord injuries
- Injuries causing deafness of blindness
- Severe burn injuries
- Loss of limb or amputation
- Traumatic brain injury
- Chronic lung damage
- Other brain injuries that could lead to physical disability, cognitive impairment, or mood imbalance
Filing a Legal Claim for a Catastrophic Injury
After suffering a catastrophic injury, it is crucial to know the parties responsible for your damages. More than one party may be liable for your injuries. For instance, other liable parties may include the employer or insurer in addition to the negligent party. For example, if you slip and fall while working at a construction site, your employer may be liable. If the premises contained hazardous material, the premises owner might be liable for failing to maintain or provide a safe working environment. If you sustain catastrophic injuries due to defective tools or machinery, the machinery manufacturer may be responsible for your damages.
Compensation Options Available
The following compensation options are available after suffering catastrophic injuries in an accident:
The person who wrongfully causes your catastrophic injuries is responsible for your medical bills. The medical costs may be paid by the liable person or by the liable party’s insurer. However, the liable parties are not always willing to pay up. A victim must prove that the other party breached their duty of care, causing the victim’s injuries. You will have several options to settle your medical bills as you wait for your personal injury case to settle or proceed to trial. These options include insurance obtained through an employer or private health insurance. You may also use government insurance like Medi-Cal and Medicare.
While awaiting compensation for medical costs, patients can use their health insurance or give the doctor a lien. It is advisable to use health insurance instead of having a medical provider on a lien basis after suffering catastrophic injuries in California. Doctors that provide services on a lien basis receive payment from the proceeds of an out-of-court settlement or lawsuit. However, you will ultimately be responsible for the bills that exceed the lien amount. Usually, when working on a lien, medical providers bill at their full rate, explaining why it is better to use your health insurance instead of liens. The medical provider cannot charge you more than the contracted rate if you use your health insurance.
The liable party’s insurer will need copies of medical bills. Your healthcare provider may also have to provide the other parties with your diagnosis and your test results. You should ensure that your therapist or doctor keeps proper notes that link your treatment to the injury or accident. The other party's insurer may also request your health records for the last five years to determine whether your injuries resulted from the accident.
Sometimes, the other party’s insurer may offer a settlement not large enough to cover all your bills. No matter how tempted you feel to take the offer, it is advisable to contact an experienced personal injury attorney. A personal injury attorney will assess the strength of your case and determine your bargaining position. Then, he/she can negotiate for a larger settlement or request the medical practitioners to reduce your bills.
Lost wages are the amount of money you could have earned from work if you did not sustain injuries. Lost wages could include but are not limited to:
- Regular pay (salary or hourly)
- Overtime pay
- Self-employment income
- Personal, vacation, or sick days
- Any other benefits the employee would have accessed in the place of work.
Accident victims will have up to two years to file a lost wages claim. Different catastrophic injuries will have different time limits as provided for in the Statutes of Limitations. For instance, the time limit may be one year for medical malpractice cases. An experienced personal injury lawyer will help you determine how long you have to sue for lost wages.
Personal injury plaintiffs must prove the extent of lost wages they claim to have incurred. The calculation is straightforward when the injury has only lasted for a brief period. However, determining lost wages might be difficult if an employee is paid based on performance or was due for a raise. In this case, determining the extent of lost wages may require occupational experts or forensic accounting experts.
There are several ways of proving lost wages in California:
- A lost wages document from the employer
- Past tax returns and pay stubs
If you were in self-employment before you suffered catastrophic injuries, you would also need to show the extent of lost income. You will need to prove that you would have made a certain amount during the period in which you could not work. Documents that will come in handy in establishing lost self-employment income are:
- Billing statements for the months that preceded the catastrophic injury
- Tax returns statements for previous years
- If your income is seasonal, you should provide billing statements for a similar period in the preceding years.
A forensic accounting expert will need to testify if your income is high or complicated.
Lost Earning Capacity
According toCalifornia law, accident victims can obtain both their past as well as future lost income. Lost earning capacity refers to the loss of your ability to earn money in the future. Unlike lost wages, lost earning capacity is more difficult to prove. Your catastrophic injuries do not need to be permanent for you to access lost earning capacity benefits. You will receive lost earning capacity benefits if severe injuries like traumatic brain injuries are expected to last for some time.
As outlined by California law, lost earning capacity is the difference between what you could have earned if you did not suffer injuries and what you will earn given your injuries. Compensation may include:
- Overtime pay
- Self-employment income
- 401(k) or profit-sharing contributions
- Personal, vacation, and sick days
- Any other benefits or perks like free meals and car allowances
Several factors could affect lost earning capacity calculations:
- Your age
- Whether you intend to return to your regular job
- How long the catastrophic injuries will last
- Your health before the catastrophic injury
- The number of working years before you reach the retirement age
- Your life expectancy before the injury
- The terms of your employment, whether permanent or temporary
- Whether your income was performance-based or permanent
- What you earned in the past
- Your talents and performance reviews
- Opportunities for promotion in your field
- Your long-term interests and employment goals
- Company policies regarding raises, promotions, and cost-of-living increases, among others
You can prove lost earning capacity in various ways:
- Your employer
- Your doctor
- Your vocational rehabilitation expert
- An expert economist
- Your family, friends, and co-workers
Pain and Suffering
The law allows plaintiffs to recover pain and suffering damages alongside other non-economic damages after sustaining catastrophic injuries. Under California law, there is no cap for the pain and suffering benefits except for a few exceptions. If you suffer catastrophic injuries in a medical malpractice case, the pain and suffering damages are capped at $250,000.
There is no specific standard for determining the value of pain and suffering. The judge uses his or her discretion to award pain and suffering benefits. A victim doesn't need to suffer physical injuries for him or her to claim pain and suffering benefits. However, the judge is more likely to grant you non-economic benefits when:
- The medical bills are high.
- The injuries result in long-term loss of function or severe disfigurement.
- Recovery took a long time or was difficult.
- Injuries can be verified through lab tests, x-rays, and other objective criteria.
If an injury involves little or no physical injury, seeking mental health counseling may increase your chances of getting compensation. The testimony of a psychiatrist is essential if you suffered the following symptoms:
- Post-traumatic stress disorder
- Other similar symptoms that aren’t easy to establish using objective tests
It can be difficult to prove the amount of pain and suffering damages. Non-economic damages involve compensating a victim for subjective losses. Pain and suffering damages are best established when there is objective evidence like:
- Medical records
- Comprehensive doctor’s or therapist’s notes
- Photos of physical injuries or property damage
- Texts, emails, and social media posts
- Before and after videos that show the plaintiff’s activity levels
- Testimonies of friends, relatives, and co-workers
- Evidence of lost work time
- Expert testimony regarding the victim’s suffering
Loss of Enjoyment in Life
When awarding damages for loss of enjoyment in life, the judge will consider several factors, including:
- Your age
- Your educational background and work history
- The severity of your injuries
- The future consequences of your injuries
- The nature of activities that you have lost due to the injuries
You may be entitled to compensation for loss of enjoyment in life if you suffer a mental or physical injury. The injury affects your ability to perform certain enjoyment activities that you used to perform before suffering injuries.
For instance, after suffering catastrophic injuries, you may not be able to engage in activities like:
- Recreational activities
- Social activities
- Volunteer activities
Damages for loss of enjoyment in life are awarded in California but are usually included in compensation for pain and suffering instead of standing as a separate damage award. In most cases, the loss of enjoyment in life results from catastrophic injuries like:
- Spinal cord injuries
- Disfiguring or severe burns
- Injuries causing deafness or blindness
The calculation for the loss of enjoyment in life will depend on the following factors:
- The victim’s age
- The victim’s party appearance
- The victim’s work history and educational background
- The geographical location where the injured person lives
- The severity of the injuries
- The future consequences resulting from the injury
- The nature of the activity that the victim loses
You can recover punitive damages if you prove that your damages were caused by the defendant's malice, fraud, or oppression. For example, if the defendant acted in extreme recklessness, making you suffer catastrophic injuries, you could seek punitive damages.
To receive punitive damages in California, you must prove through clear and convincing evidence that the defendant acted in fraud, malice, and oppression. The purpose of punitive damages is not to compensate the plaintiff for the damages sustained. Instead, punitive damages seek to punish the wrongdoer or defendant who engages in extremely negligent behavior. Punitive damages serve as an example to discourage the defendant and other people from engaging in similar activities in the future.
What does clear and convincing evidence mean? It means that the plaintiff should show that, more likely than not, the defendant acted in malice, fraud, or oppression. The California law doesn't define clear and convincing evidence. However, this type of evidence carries a higher burden of proof than the preponderance of the evidence.
A plaintiff requests for an award of punitive damages, also known as exemplary damages. While requesting punitive damages, the plaintiff doesn't have to clarify the level of benefits being sought. In some instances, punitive damages are determined in the same proceeding as the defendant's liability. However, the defendant may also request to have the issue tried separately. There is no standard way of calculating the level of punitive damages to award the victim. However, the judge considers several factors while determining whether to award punitive damages:
- The level of reprehensibility of the defendant’s conduct
- Whether there is a relationship between the punitive damages and harm sustained by the plaintiff
- The amount that will punish the defendant and discourage them from engaging in a similar wrongful act in the future
Unlike in some states in the U.S., there is no cap on the punitive damages in California. However, the Fourteenth Amendment to the U.S. Constitution prohibits the imposition of arbitrary or excessive punishments. As outlined by the U.S. Supreme Court, punitive damages should bear a reasonable relationship to the compensatory damages that the plaintiff receives.
The surviving family members or the estate may sue for wrongful death damages if their loved one dies due to another person’s wrongful acts that are reckless, negligent, and intentional. The damages that can be recovered through a wrongful death claim include:
- Burial and funeral expenses
- The money the deceased would have made as income
- Compensation for the loss of support and companionship
Who qualifies to file a wrongful death claim in California? The following people can file a wrongful death claim:
- Surviving spouses
- Domestic partner
- Other children, including stepchildren
- Any other person who would be entitled to the deceased person's property according to California intestate succession laws
The wrongful death damages compensate the surviving members for the value and support they would have expected to receive if the victim had lived. Thus, the period for which wrongful death damages are recoverable is the shorter of:
- The deceased person’s life expectancy at the time of the wrongful act
- The plaintiff’s life expectancy at the time of the wrongful death
After filing a wrongful death claim, the beneficiaries may receive both economic and non-economic damages. Heirs cannot recover punitive damages in wrongful death cases under California law. However, punitive damages can be sought through a survival action on behalf of the deceased person’s estate.
Other Compensation Options
Other compensation damages for catastrophic injuries include:
- Psychological therapy
- Short or long-term care
- Physical or occupational therapy
- A life care plan
Find a San Diego Personal Injury Attorney Near Me
If you or a loved one suffers a catastrophic injury, you need an experienced personal injury attorney to help you seek compensation. We invite you to contact us at the San Diego Personal Injury Law Firm for reliable guidance on the available compensation options. Contact us at 619-478-4059 and speak to one of our attorneys.