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Types of Personal Injury Damages

What compensation am I allowed to recover for my injuries?

In New Mexico, the injured person (the plaintiff) should be fully and fairly compensated for all injuries caused by wrongdoer's (the defendant's) negligence or other wrongful conduct. Failing to award full and fair compensation would leave the plaintiff less than whole.

When thinking about full and fair compensation, think about balancing the scales of justice. Think about what you would have to be paid to endure what the plaintiff has endured. Think about what the defendant would have to pay you to bear what the plaintiff will bear.

Our Albuquerque personal injury attorneys believe that full and fair compensation also makes the wrongdoer (the defendant) take responsibility for his or actions. Anything less than full and fair compensation will send a message to defendants that their conduct is acceptable and they are free to commit the same negligent acts again and again.

We also believe that awarding fair compensation often leads to increased safety standards. For example, in one case, the tragic death of a little girl caused by a pool drain led to a federal law requiring proper installation/maintenance of pool drains. In this case, the company that made the pool drain agreed to redesign its drain covers and improve the warnings.

Physical Pain and Suffering

"The greatest evil is physical pain." - Saint Augustine

Physical pain and suffering is often one of the most severe injuries that a plaintiff will suffer. Pain is like a thief in the night that robs a person of the ordinary pleasures of life.

Pain often affects relationships with one's spouse and children. Pain often stops a person from playing with his or her children. Pain often stops a person from making love to his or her spouse. Pain often prevents one from earning a living for his or her family and often stops a person from enjoying hobbies and the pleasures of living. Pain too often makes life unbearable.

Acute pain is normally caused by immediate tissue damage resulting from an injury, such as stubbed toe. When a person stubs his or her toe, the pain sensors within the toe are activated. The pain sensors send a signal to the brain, telling the brain that the toe hurts. The person with the stubbed toe sits down until the pain resolves. Depending on the severity of the stubbed toe, the pain normally improves rapidly and the pain goes away within a few hours or days.

Chronic pain is pain lasting for weeks, months, and years. Many victims of negligence suffer from chronic pain. Chronic pain may leave a person partially or permanently disabled. Victims of chronic pain often become drug dependent. Julius Caesar said: "It is easier to find men who will volunteer to die, than to find those who are willing to endure pain with patience."

In contrast with chronic pain, acute pain is normally a symptom of an underlying medical problem—for example, a stubbed toe. Chronic pain is a specific medical problem in and of itself. For example, if a person suffers a broken bone in a car wreck or a slip-and-fall accident, there also may be nerve damage that never heals. Errant nerve impulses keep sending signals to the brain about tissue damage that no longer exists. In brain injury cases, because of the damage to the brain, persons often have headaches with more frequency or severity or headaches that never go away.

Mental and Emotional Pain and Suffering

Like physical pain and suffering, mental and emotional pain and suffering (also called mental anguish) is often one of the worst injuries that a plaintiff may suffer. Physical injuries and physical pain often lead to depression, fear, panic, embarrassment, anger, frustration, fatigue, and feelings of inadequacy.

In a typical personal-injury case, there is a physical injury that leads to physical pain that leads to mental anguish. If, for example, a person suffers a severely broken leg in a car wreck that requires surgery followed by months of physical therapy, mental anguish is likely to follow. This person may have feelings of fear or panic over the possibility of never being able to walk again. The person may become depressed and frustrated because he or she can no longer provide income for his or her family. Feelings of inadequacy and anger may creep in because this person may be unable to play with his or her children. This person may have feelings of shame because he or she is required to lay in a hospital bed half naked. They may have feelings of embarrassment or humiliation if their leg injury leads to amputation.

What happens if the physical pain never goes away? Chronic depression may set in. Pain is depressing, and depression causes and intensifies pain. Studies show that people with chronic pain have three times the average risk of developing psychiatric symptoms—normally mood or anxiety disorders—and depressed patients have three times the average risk of developing chronic pain. The relationship between depression and migraine headaches is especially close.

Loss of Enjoyment of Life

In too many personal injury cases, the plaintiff's life is turned upside down. The physical injury itself and the accompanying physical and emotional pain and suffering lead to the loss of the enjoyments and pleasures of life.

A person suffering from a physical injury that leads to physical pain and emotional suffering may be unable to enjoy the things in life that make living enjoyed and pleasurable. For example, assume that a nurse whose hobby is quilting suffers severe nerve damage to her arm. The nerve damage may prohibit her from enjoying the occupation of her choosing (nursing) and may prohibit her from enjoying the activities of daily living (quilting). Assume that a father's hobby is coaching his son's football team. His injuries may stop him from experiencing the joys and pleasures of coaching his son's football team. The insurance company or the jury should fully and fairly compensate a person for damages for loss of enjoyment of life.

In New Mexico, the plaintiff may recover damages for the effect the physical injuries and the physical and emotional pain and suffering have had on his or her ability:

  • (1) To enjoy the occupation of his or her choosing;
  • (2) To enjoy the activities of daily living;
  • (3) To enjoy social and leisure activities; and
  • (4) To maintain a sense of internal well-being.

Damages for Medical Care and Treatment

In New Mexico, the injured plaintiff is allowed to recover the reasonable and necessary medical charges for the treatment of his or her injuries. These damages include medical charges before trial and medical charges that are reasonably certain to be required in the future.

New Mexico has adopted the "collateral source" rule. Under the "collateral source" rule, benefits received by or for the plaintiff from a source collateral to the defendant may not be used to reduce that defendant's liability for damages. The defendant should not escape full liability because the injured plaintiff purchased insurance or made contributions to Medicare.

Private insurance benefits, Medicare benefits, and Medicare "write offs" are collateral, and they do not reduce the defendant's liability to the injured plaintiff. However, in most cases, the entity (for example, private insurance, Medicare, and Medicaid) that paid the medical expenses has a subrogation claim. This means that the injured plaintiff must reimburse in whole or in part the benefits private insurance, Medicare, or Medicaid paid. Often, private insurance, Medicare, or Medicaid will reduce its subrogation claim. You need an experienced, Board Certified trial lawyer to help you negotiate subrogation claims.

Non-Medical Expenses

Non-medical expenses typically include the cost of trips to and from the doctor when the doctor lives in another city or town, costs of having to stay in a hotel during the course of the medical care and treatment if a hotel is required, and the cost of providing a caregiver when one is needed.

In New Mexico, the injured plaintiff should also recover non-medical expenses required as a result of the injury. For example, assume a case in which a doctor fails to diagnose cancer in a timely manner, and the patient is required to receive cancer treatment outside of Albuquerque or New Mexico. In that situation, if the cancer patient needs to travel to and from Houston for treatment, the cancer patient is allowed to recover damages for the cost of flying to and from Houston, staying at a hotel while staying in Houston, and for the cost of having someone stay with and take care of the cancer patient while he or she stays in Houston.

Lost Earnings or Lost-Earning Capacity

Often, when a person suffers a personal injury, the person is unable to work during the healing process. This element of damages is called lost wages.

Often, the physical injuries themselves and/or the accompanying physical and emotional pain prohibit a person from working. In New Mexico, the injured plaintiff should recover the full amount of his or her lost earnings or lost-earning capacity. These damages include lost employment benefits and lost retirement benefits, including the loss of Social Security benefits.

Assume, for example, that a carpenter loses the use of his arm. In that situation, the carpenter may never be able to return to work as a carpenter. The carpenter should recover the full measure of his or her damages resulting from the inability to work. If the carpenter has to be retrained, he or she should recover damages for the cost of retraining and for lost wages and lost retirement benefits during the retraining process.

Sometimes a person is able to eventually return to work, but because of the nature of their injuries, that person will earn less than he or she earned before the injury. This element of damages is called lost-earning capacity. In other cases, the injured plaintiff may be able to return to work, but his or her career will be cut short because of the injuries. This element of damages is called reduced work-life expectancy.

Loss of Household Services

In New Mexico, if the injured plaintiff is unable to perform household services (for example, cleaning, preparing meals, maintaining the yard, and taking children to and from school), he or she should recover damages for the value of those household services.

Assume, for example, that a mother cleans the house, prepares the meals, washes clothes, and hauls the children to and from school. If the mother's injuries prohibit her from performing these types of household services, she and her family should be fully and fairly compensated for her inability to perform these services.

Assume, for example, that a father mows the grass, maintains the yard, and coaches his daughter's basketball team. If the father's injuries prohibit him from performing these types of household services, he and his family should recover full and fair compensation for his inability to perform these services.

Loss of the Opportunity for a Better Medical Outcome

If a person proves liability and their damages by 51 percent ("more likely true than not true"), that person is allowed to recover 100 percent of their damages caused by the wrongdoer's (the defendant's) negligence or other wrongful conduct.

In New Mexico, the burden of proof in a civil lawsuit is "more likely true than not true." In addition, an injured person and their family are allowed to recover damages for the lost opportunity for a better medical outcome. What does this mean? Assume that a doctor fails to diagnose lung cancer. Assume that, at the time the doctor fails to diagnose the lung cancer, the patient had a 40 percent likelihood of a cure if she had been properly diagnosed and treated. In that situation, the patient and her family may still recover 40 percent of their damages. The defendant-doctor should not escape liability simply because the cancer victim cannot prove "more likely true than not true" that she would have cured had she been properly diagnosed and treated.

Nature, Extent, and Duration of the Injury

In New Mexico, an injured person may recover damages for the nature, extent, and duration of his or her injury. Think of this element of damages as a "catch-all" for all damages caused by the defendant's wrongful conduct that do not fall within the other elements of damages.

Anything that the defendant caused that does not fall under another element of damages would fall under this element of damages. For example, other elements of damages do not specifically provide for damages for scarring or disfigurement. Under damages for the nature, extent, and duration of the injury, for example, the jury may award compensation for the scarring itself.

Punitive Damages

When a defendant's conduct is egregious, New Mexico law allows for the recovery of punitive damages. The purpose of punitive damages is to punish egregious conduct and to deter others from committing similar wrongful acts.

In a personal injury lawsuit, a jury may award punitive damages if the defendant acted:

  • Maliciously: Malicious conduct is the intentional doing of a wrongful act with knowledge that the act is wrongful.
  • Willfully: Willful conduct is the intentional doing of an act with knowledge that harm may result.
  • Recklessly: Reckless conduct is the intentional doing of an act with utter indifference to the consequences. Or,
  • Wantonly: Wanton conduct is the doing of an act with utter indifference to or conscious disregard for a person's rights or safety.

An employer may be held liable for the malicious, willful, reckless, or wanton conduct of its employee if:

  • The employee was acting in the scope of his or her employment and had sufficient discretionary or policy-making authority to speak and act for the employer with regard to the conduct at issue, independently of higher authority; or
  • The employer authorized, participated in, or authorized the conduct of the employee.

For example, if a supervisor orders or allows an employee to pile snow uphill knowing that the snow will freeze at night and thaw during the day, creating "black ice," and a customer slips and falls on the "black ice," a jury may award punitive damages against the employer.

A corporation may be liable for punitive damages if the cumulative conduct of its agents or employees shows that the employer acted maliciously, willfully, recklessly, or wantonly, regardless of a particular employee's conduct. For example, punitive damages may be awarded against a hospital if the hospital under-staffs the emergency room knowing that harm may result to patients. The property or wealth of the defendant is a legitimate factor for the jury to consider in awarding punitive damages. Unlike compensatory damages, punitive damages are taxable.

Damages Recoverable by the Victim's Loved Ones

When someone is injured, too often the entire family suffers. In New Mexico, the family members of an injured person are allowed to recover full and fair compensation for the effects the injured person's damages have had on them. These damages are called damages for loss of consortium.

The effects of the injury will often affect the injured person's family. Serious injury often affects the lives of the injured person's loved ones, especially a spouse or a parent or a child. For example, if a parent is injured, the parent may be unable to provide guidance and support for his or her child. If a parent is injured, he or she may be unable to help his or her child with homework. The injured parent may be unable to coach his or her son's baseball team. The injured parent may be unable to help with his or her daughter's dance recital. If a spouse is injured, he or she may be unable to make love to his or her wife or husband or even hold and touch the other spouse.

If your loved one has been severely injured, you should recover full and fair compensation for the effects your loved one's injuries have had on you and the other members of your family.

Do you need more information on the types of damages you and your loved one's should recover as a result of another's negligence or wrongful conduct? Contact an Albuquerque personal injury lawyer from the Law Office of James H. Wood PC for a free consultation!

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