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Personal Injury Legal Glossary

Affirmative Defense
Expert Witnesses
Non Economic Damages
Prima Facie
Punitive Damages

Affirmative Defense

An affirmative defense is the other party’s reasons as to why the negligence that occurred was not their fault or that they are not responsible for it. An affirmative defense is something that must be proven by the other side, by the defense. For example, the affirmative defenses that are raised by the nursing home are claims that must be defended by the person who is alleging abuse or neglect.

The defense may try to prove that they had no duty of care, they did not breach the standard of care, or the injury was caused by the negligence of the person alleging the injuries.

Your personal injury lawyer responds to those affirmative defenses in the case that they need a reply or just a denial and begins to research them to make sure that they have the proper documentation, evidence, and witnesses testimony lined up to refute the affirmative defenses.

Expert Witnesses

An expert witness is someone whose line of work involves a particular subject matter that is at issue in a case. They are not a party in the case; they are hired specifically for their expertise. A person becomes an expert witness based on their education, training, and experience in a particular field.

Sometimes a case will require an expert witness to be able to prove one of the elements necessary in the case. A qualified attorney has a group of experts that they rely upon to review and evaluate their cases to make the determination about the existence of negligence as well as the value and the future implications of that negligence and resulting injuries.

There are many types of expert witnesses in a personal injury case There can be nurses who are experts in the nursing home field. Physical therapists, psychiatric witnesses, and psychologists can be expert witnesses. As well as economists, forensic accountants, and medical billing specialists may also be called as expert witnesses. Sometimes, a person has an injury that requires a reconstruction, so a biomechanics expert may be called as an expert witness.

When someone has a Clearwater injury lawyer, that lawyer has a relationship with experts in the area. As such the individual bringing forth the injury claim has a much better chance of evaluating that claim and bringing it to fruition with all the necessary evidence and elements proven through the use of experts. In addition, certain cases such as medical malpractice or nursing home abuse have very tight communities, so unless those local relationships are already in place, the chances of a lawyer trying to establish relationships in this area are very small.

In nursing home abuse cases a person can have nursing home experts involving the care of the nursing home such as expert administrators and expert doctors who work in the nursing home environment.

Noneconomic Damages

Economic damages are what people normally think of when they talk about abuse and neglect. They are medical bills, loss of earnings, and anything having to do with money. Noneconomic damages are more emotional in these types of cases. These include past and future pain and suffering, the loss of consortium, and potentially emotional distress.

The noneconomic damages are the most complicated to prove because there is no actual math that can be done to prove noneconomic damages. So a person should hire a qualified attorney who has experience and can give that person a reasonable indication about what a jury would potentially bring based on the noneconomic damages that have occurred.

Noneconomic damages are important because these are the feelings, emotions, and the experience that the negligence caused and they are the most difficult to prove.

Noneconomic damages are capped in certain jurisdictions meaning the courts only allow for a certain amount of economic damages. Even though the jury may award a substantially larger number, the statute requires that the number be reduced. A qualified lawyer can sometimes re-categorize different types of noneconomic damages to attribute specific noneconomic damages to other individuals. For example, a person may bring a consortium claim for a spouse, for example, and a pain and suffering claim for a victim. That way the person has two people who can bridge the noneconomic damages cap.

Prima Facie

Prima facie is Latin for ‘on its face’ meaning that a person has actually proven the elements necessary to bring a cause of action.

A person must make a prima facie claim in a case that can show that the party at fault had a duty to protect an individual and breached their duty that was the actual and proximate cause of the injuries or damages being claimed. The person also has an obligation to bring a valuation of those damages.

A personal injury lawyer gathers records, statements, and evidence to prove that an individual or company acted outside of the expected standard of care and that the breach of that standard of care caused the injuries that a person suffered.

An example of a nursing home abuse prima facie case is being able to show that a nursing home or their employees were negligent in failing to abide by the standard of care set forth for nursing home facilities. Based on that negligence, someone was injured or neglected and that neglect or injury caused that individual permanent harm.

Punitive Damages

Punitive damages are designed to punish a person for a specific conduct. Punitive damages are very complicated and require court approval. It is important to have a qualified lawyer who is capable of pleading punitive damages and also making sure that they have all the statutorily required evidence and testimony to establish the propriety of those punitive damages.

Punitive damages are normally awarded by a jury verdict after they determine the economic and noneconomic damages for a particular claimant. Punitive damages are calculated purely by the jury. The court gives them an instruction that they should assign a number they believe fits the punishment for the conduct alleged.

The factors used to determine the amount awarded in punitive damages include the type of injury that is being claimed. The court instructs the jury to consider things like the frequency of injuries and the reckless disregard of the elements that caused the injury. The court tells the jury how to consider the punitive part of a claim.

A qualified lawyer can present the appropriate evidence and testimony for a jury to consider the extent of punitive damages.