Medical bills and lost wages are just some of the personal injury damages you can recover after an accident in the Tar Heel State
If you’ve been injured in a North Carolina accident, you might have 2 main priorities and concerns.
First, you need to take care of your medical needs and physical recovery. Second, you need to figure out how to continue paying the bills, whether they’re for medical treatment or your general living expenses if the accident has left you unable to work.
Generally, the purpose of personal injury law is to make an injured person whole. The legal system should restore you to the financial position you would be in if the accident hadn’t happened. In other words, damages (the money you can recover from an accident) are meant to cover the expenses related to your injury.
But first things first:
If you’ve been in a North Carolina accident, whether it’s a slip-and-fall, car accident, or you’ve suffered any other type of injury, the first issue is to determine who’s liable. If there’s a person or entity (a company, government agency, manufacturer, business, etc.) who was at fault for your accident, you’re entitled to recover damages if you don’t have any liability for the accident.
How does negligence determine the amount of damages you can recover?
North Carolina is a pure contributory negligence state. If the plaintiff (injured person) is determined to have any level of liability for the accident, they cannot recover any damages.
This chart shows how damages can be allocated based on fault in each state:
As you can see, North Carolina (in the far left column) is 1 of only 5 states with a pure contributory negligence standard.
Compensatory damages in a North Carolina personal injury accident
Once liability is established, the next question is how much your claim is worth.
Compensatory damages repay a plaintiff for the losses they’ve endured as a result of the accident. Within compensatory damages, you can recover economic and non-economic damages.
Economic damages are those that have a specific financial cost. This might include:
- Medical treatment. A personal injury award almost always includes the cost of medical care, both to repay what you’ve already spent on care and to pay for estimated future treatment. Your lawyer will work with experts like doctors, accountants and actuaries to determine what your future medical needs will entail and what they’re likely to cost.Medical treatment costs can include doctor and hospital visits, prescription medication, assistive devices, rehabilitative therapies, and any other costs related to your physical recovery.
- Lost income. You can also claim salary and wages as a loss from an accident. This might include time you had to take off from work following your injury, a reduction in wages if you had to return to a different job than the one you had before the accident, and loss of earning capacity. Loss of earning capacity is the difference between what you would’ve earned for the remainder of your lifetime and what you will actually earn because of the accident.
- Property loss. If you’re filing a lawsuit because of a car accident, for instance, the cost of replacing or repairing your car would be included under property loss. You’re entitled to the fair market value of any property lost, including your home or other belongings if they were damaged as part of the injury.
Non-economic damages don’t have a specific money value. This category of damages still aims to compensate you for losses, but they could be intangibles and it’s harder to assign a specific money value. Examples of non-economic damages include:
- Emotional distress. Emotional distress damages compensate a plaintiff for the non-physical effects of an injury. This might include fear, anxiety, sleep disturbances, post-traumatic stress disorder, or other psychological conditions that arise following a trauma or serious injury.
- Loss of enjoyment. Life is about more than the necessities. You might be able to eat, sleep, and function, but can you enjoy your time? If you were an athlete disabled in an accident, or a pianist who effectively lost the use of your hands, you might be suffering because you’ve lost a substantial amount of enjoyment in your life. You don’t need to be an Olympian or Beethoven to suffer loss of enjoyment. Anyone who has been injured to the extent that they lose some level of capacity to do the things they previously enjoyed—even if it’s walking your dog or playing with your kids—could be eligible for a damage award for loss of enjoyment.
- Loss of consortium. A common perception of loss of consortium claims is that they’re just about sex, but that’s not true. If a loved one has been in an accident and lost the ability to provide love, affection, companionship, comfort, or even the ability to participate in household responsibilities and child-rearing, you might have a loss of consortium claim.
Non-economic damages are capped at $500,000 in North Carolina medical malpractice cases.
North Carolina punitive damages awards
Punitive damages are calculated separately from (or in addition to) compensatory damages as a punishment or deterrent to a defendant when the action that caused the injury was malicious, willful, or especially egregious.
In North Carolina, there are a couple of factors that affect whether a plaintiff is awarded punitive damages:
- The egregiousness of the conduct. Egregious, which means “outstandingly bad; shocking,” refers to willful or wanton conduct, fraud, or malice. North Carolina law defines “willful or wanton conduct” as “the conscious and intentional disregard of and indifference to the rights and safety of others, which the defendant knows or should know is reasonably likely to result in injury, damage, or other harm.”
- Defendant’s ability to pay. When you sue a defendant for costs related to your injury, the court doesn’t permit the plaintiff to present evidence regarding the defendant’s wealth or assets. But if you make a claim for punitive damages, you’re allowed to present this evidence. The plaintiff’s lawyer may provide evidence of available insurance to allow the judge or jury to know what amount of damages would reach the defendant’s personal funds.
North Carolina caps punitive damages at 3 times the amount of the compensatory damages or $250,000, whichever is higher. Drunk driving is an exception to the damage cap.
Considerations for punitive damages
North Carolina law § 1D-35 presents the following factors as determining whether or not to award punitive damages:
- The reprehensibility of the defendant's motives and conduct.
- The likelihood, at the relevant time, of serious harm.
- The degree of the defendant's awareness of the probable consequences of its conduct.
- The duration of the defendant's conduct.
- The actual damages suffered by the claimant.
- Any concealment by the defendant of the facts or consequences of its conduct.
- The existence and frequency of any similar past conduct by the defendant.
- Whether the defendant profited from the conduct.
- The defendant's ability to pay punitive damages, as evidenced by its revenues or net worth.
The North Carolina Billed vs. Paid law
North Carolina passed a law in 2011 that affects how much you can recover from an injury based on what you paid out-of-pocket as compared to what was covered by your insurance.
North Carolina is an at-fault state, which means the person who is legally at fault for the collision is responsible for the costs. Usually, their insurance carrier pays for damages and injuries of anyone else injured.
If you have health insurance, you might look at your medical bills to see what your copay (or out of pocket cost) is compared to the amount that the provider charged the insurer. But medical providers enter into contracts with insurance companies that establish their rates for various services. In other words, the amount the doctor charges the hospital is less than what it would be if you were to pay out of pocket for a medical procedure.
The effect of North Carolina’s 2011 law is that the at-fault person would pay less in damages to an injured person if more of their expenses were covered under their own health insurance. The law limits evidence of medical expenses to the amount actually paid, whether it was paid by the plaintiff or the insurance company.
Example of North Carolina Billed vs. Paid Law
Motorist Molly and Driver David have an accident. The evidence is clear and undisputed that David was completely at fault and Molly couldn’t have avoided the accident.
Molly suffered serious injuries and had a lengthy hospital stay. When she was discharged from the hospital, the total charges to her insurance company for treatment were $250,000.
Molly’s health insurance covered $175,000 of what it was billed by the hospital. The remaining $75,000 is billed to David’s insurance company since he was the at-fault driver.
Under the state’s Billed vs. Paid Law, Molly’s lawyer may only present evidence for the $75,000 billed to David’s insurance company, rather than the full $250,000 in medical treatment expenses resulting from the accident.
Duty to mitigate damages
All North Carolina plaintiffs have a responsibility to mitigate — or lessen — the effects of an accident. If your doctor recommends a treatment for your injuries but you choose not to have it and your injury becomes worse or your recovery is longer, you might not receive compensation for the worsened condition or lengthened recovery time because you chose not to do everything possible to recover quickly.
How to calculate damages for personal injury in North Carolina
The first step in calculating damages is to get an accounting of exactly how much the accident cost. This might be the easy part.
This downloadable and printable Medical Expenses Worksheet can help you log and maintain records for the costs of your medical treatment, including providers, dates, amounts, and payments.
If you’ve completed treatment and reached full recovery, you might be able to stop there. If you have a specific amount for your medical costs, lost wages, and property loss, there might not be more to calculate.
But if you believe that you’ll have continuing or ongoing treatment, if you haven’t yet returned to your full salary at work, or there are additional future expenses, you should consult a lawyer near you who has experience calculating future damages. With the help of medical experts, actuarial tables, financial experts, and more, they can determine exactly how much the accident will cost over the course of your lifetime.
But here’s where it gets trickier.
In general, North Carolina will base a pain and suffering settlement or award on these factors:
- Severity of the injury
- Effect on your daily life
- How the injuries affected your mental health and well-being
For each of these considerations, the more serious the physical injuries are, the more the pain and suffering will be. But it’s still difficult to put a dollar value on pain and suffering. That’s why there are 2 legal methods for determining pain and suffering damages:
There’s a scale from 1 to 5 that’s generally used to calculate pain and suffering. If your injuries are very severe, like spinal cord damage, brain injury, an amputation or disfigurement, you’d multiply the amount of your economic losses by a higher number like 4 or 5. If your injuries are likely to fully heal or are less serious, you might multiply by 1 or 2.
Your lawyer will negotiate the multiplier with the insurance company or defendant’s counsel.
Per diem method
If you’ve made a full recovery (or are expected to), you can calculate pain and suffering damages by multiplying a set amount by the number of days in which you suffered. In other words, your lawyer might negotiate that your pain and suffering cost you $100 per day for your recovery time, which was 3 months. That would mean you’d expect to receive about $9,000 in damages for pain and suffering.
It can be hard to establish how much pain and suffering cost. Here are 5 steps you can take to be compensated fairly:
- Keep a record of any prescription pain medicine you’ve taken for your accident-related injury. Maintain a log of how frequently you take it and how much you take. This will help to establish the amount of physical pain you’ve experienced.
- Have your primary care physician (or any doctor you’re seeing after the accident) document any mental health issues you’re experiencing.
- Get a referral to a mental health professional like a psychotherapist or psychiatrist.
- Maintain records of any prescription antidepressant or anti-anxiety medication you take for emotional distress.
- Keep a journal. Write down your physical pain and emotional state each day.
Understanding how damages work and what you’re entitled to receive might be the most complicated part of a personal injury lawsuit. The Enjuris personal injury law firm directory is a great place to find a North Carolina lawyer who’s ready to examine your case and help you recover what you need financially.