This is one of the most under-utilized damages that is available to injured persons. Many people don't have the ability to pay someone to come into their homes to assist them when they are injured so they rely on family and/or friends. This is compensable in Washington and some other states also.
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Introduction
Personal injury lawsuits are taxing on even the strongest of families. Between the lost wages, extensive medical expenses, and loss of earning capacity, the injured party often has a long and arduous road to recovery, which affects not only the individual, but their loved ones as well. It is common that a spouse will personally provide care and recovery services, rather than hire a nurse or health care practitioner to perform the work. This, even at the cost of taking time off of work and sacrificing income in order to provide the necessary care. The good news is that this does not have to be a total loss to the family! With a well informed attorney, a claim for “family services” damages can be included as part of the damages calculation in a personal injury lawsuit and the family can be compensated for all of their contributions.
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What Steps Should I Take Before Bringing This Claim?
The plaintiff and family members will need to be interviewed regarding the types of services provided and the number of hours. In some cases, the number of hours might be minimal. In that situation, it is probably best not to pursue a claim for this element of damages. In other cases, the services provided by family members can be substantial, and this element of damages may even extend into the future. Services to be considered include nursing services, transportation, meal preparation, household cleaning, and home repairs or modifications.
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So How Do These Types of Damages Work?
The purpose behind allowing “Family Services” damages is to award compensation to a plaintiff for nursing, household care, transportation, or other such related services provided by a family member during their period of recovery. It is a form of past economic damages for services already rendered, but may also consider future need for the continuation of these services. Recovery for the reasonable value of services gratuitously rendered by a member of the family is permitted, even though the plaintiff made no actual payment for these services. Howells v. North American Transportation & Trading Co., 24 Wash. 689, 64 P. 786 (1901), (proper measure of damages is the reasonable value of the services rendered by the family member, not the value of the family member's lost time from own business). There are two main issues that are usually raised by the defense in response to a claim for these types of damages: 1)To whom does the claim belong? (2)How should the damages be measured?
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How Should The Damages Be Measured?
The measure of damages under this theory is unrelated to the family member’s lost wages while providing care for the injured party. Instead, Washington law is clear that the damages are equivalent to the value of the services provided as if the plaintiff had actually hired somebody to perform the work instead of using the family member. In Howell v. North American Transport and Trading Co., 24 Wash. 689, 64 P. 786 (1901), the Washington Supreme Court held that in an action for damages caused by injuries to plaintiff's wife, the value of the husband's services in attending on his wife must be measured by the value of the services of a competent nurse, and not by the value of the time lost from his business pursuits. These are just a few examples of the general premise that a plaintiff should not be punished for accepting care and services from a family member rather than hiring somebody to perform the same work.
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Who does the claim belong to?
While most of the case law tends to stray toward the husband/wife relationship, there has been no authority that has limited the types of family relationships that “Family Services” damages applies to. In particular, caretakers of injured children would seem to be the next most likely scenario. The WA Supreme Court, in Schurk v. Christensen, 80 Wn.2d 652, 497 P.2d 937 (1972), held that the parents of an injured 5-year-old girl were allowed to recover for what they would have paid for nursing services which they themselves provided during their care for her. In Nichols v. Hodges, 385 So.2d 298 (La. App. 1980), the court held that in an action to recover for personal injuries sustained in automobile-truck collision, award of present value of lost wages of plaintiff, who had to quit job to care for daughter permanently incapacitated in collision, made in lieu of much higher salary of licensed practical nurse, whose place in daughter's care would be filled by plaintiff, was proper.
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