damages

To start off, lets define what a demand is. Demands come in many forms, but when it comes to personal injury, a demand is a written formal request for payment to settle an outstanding claim or legal matter. More simply, its an offer stating the amount of money it would take for your client to settle all claims and dismiss or refrain from filing a lawsuit against the party that caused harm. Accordingly, it is important that it is presented well.

Writing a demand is an art form. It is an opportunity to lay your cards on the table and show the seriousness of your claim or case. The language that you use needs to strike a balance between presenting the objective facts and being persuasive. You need to build your case and demonstrate the consequences if the terms of your offer are not met (i.e., that suit will be filed, attorney’s fees incurred, etc.).

There are multiple pieces needed to create a persuasive and effective demand. To start, consider dedicating a portion of the demand to introducing your client. Give a background. Humanize the name and the injuries sustained. Next, discuss liability. Demonstrate the facts that indicate who is at fault. Following, go through the damages. In a personal injury case, that will mostly mean going through your client’s medical treatment resulting from the incident. Do not skim over the damages. Take time to articulate the affect/impact of the negligence on your client. Next, outline the terms of your settlement. Identify the monetary amount that would be required to settle, set a deadline for response and payment, and describe the nature of the release you are providing. Finally, close your demand out with a punchy conclusion, reiterating your offer and position.

Damages in a medical malpractice case are no different from those in a typical personal injury case. A plaintiff is entitled to recover both general and special damages. General damages, obviously, include compensation for physical and mental pain and suffering, both past and future, as well as a diminished capacity to work, labor, and earn money. These are elements encompassed in the definition of pain and suffering as well.

Because pain and suffering is considered an element of general damages, it is awarded to a plaintiff to compensate for non-pecuniary losses and hardships whether mental, physical, or both. The measure of such damages is the enlightened conscious of fair and impartial jurors. Roberts v. Chapman, 228 Ga. App. 365, 492 S.E. 2d 144 (1997). If a plaintiff can show that he or she will likely continue to suffer physical and mental pain as a result of injuries into the future, then the jury may award damages for future pain and suffering. Bennett v. Haley, 132 Ga. App. 512, 208 S.E. 2d 302 (1974). Again, a plaintiff’s diminished capacity to labor and earn money is an additional element of general damages which can be included in a pain and suffering award. Baxter v. Bryan, 122 Ga. App. 817, 178 S.E. 2d 724 (1970).

Special damages in a medical malpractice case can be extensive. If malpractice occurs and a plaintiff is hospitalized for weeks, if not months (and we have had cases where the plaintiff was hospitalized for over a year) the medical expenses can be extraordinary. Such damages, of course, are deemed to be special damages under O.C.G.A. § 51-12-2. Special damages include medical expenses, past, present and future, lost wages, future earnings and lost profits.

Articles Tagged with damages

How to Prepare a Good Personal Injury Demand

Damages in a Georgia Medical Malpractice Case