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INTRODUCTION

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Remedies or damages as the result of negligence, and other tort actions as well, are primarily identified as compensatory damages. Punitive and nominal damages may also be awarded depending on issues of intent and recklessness, and to prove a point. In addition, a spouse may have an opportunity to bring a claim for loss of consortium due to the nature of injury sustained by the plaintiff that may create a loss of the relationship between a husband and a wife.

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COMPENSATORY DAMAGES

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Compensatory damages attempt to make the plaintiff whole. They take into account the personal injury the plaintiff suffered along with the possible future loss that may be experienced. The plaintiff may be entitled to three categories of recovery under this damage category: (1) lost earnings and earning capacity, (2) medical and other expenses, and (3) pain and suffering experienced along with loss of enjoyment.

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Wrongful deaths resulting from tort actions, and survivor benefits for the most part, are dealt with under both federal and state statutes. States, in regard to their wrongful death statutes, will differ in the amount of damages that may be awarded to survivors or beneficiaries for various claims. State survival statutes usually follow the common-law principles allowing the survivor, on behalf of the deceased, to seek to recover “whatever the deceased would have been able to sue for at the moment of death—for example, for his pain and suffering, loss of wages, and medical expenses between the time of injury and death.”1

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LOST EARNINGS AND EARNING CAPACITY

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When the plaintiff is injured, it may be necessary for him or her to take time off from work and thus be deprived of earning a salary. Depending upon the extent of the injury, the plaintiff may not be able to return to work for some period of time, or may have to cut back on hours of work indefinitely. This decrease in the ability to work, for whatever period of time, is considered in the formula for granting compensatory damages to make up the difference of what the plaintiff would have earned during the period of his or her incapacity caused by the injury.

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MEDICAL AND OTHER EXPENSES

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The plaintiff may not only claim medical expenses that have already been paid, but may also set forth an estimate of what the medical expenses in the future will be as the result of the injury induced by the negligent act. This area of recovery involves such expenses as the costs of medical office visits, drugs, laboratory tests, physical therapy, medical devices, etc. as long as they are related to the injury induced by the negligent act.

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PAIN AND SUFFERING AND LOSS OF ENJOYMENT

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Plaintiffs who are injured as the result of a tortious encounter will generally experience ...

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