Personal injury happens when someone suffers an injury because of another party’s negligence. The victim can file a claim or a lawsuit to recover damages, which can come in various forms. One of these is pain and suffering, and it’s meant to compensate for the more intangible effects of an injury.
Given that this is a subjective matter, pain and suffering may be difficult to put a value on. However, there are processes in the legal system that allow parties to calculate pain and suffering damages. What are the factors considered for this? What are the methods used to calculate pain and suffering? How can a victim prove it?
The Pagan Law Firm has shared a comprehensive guide on this matter, so you can set expectations and know when to seek legal help. Here’s all you need to know.
What Is Pain and Suffering?
It’s important to note that pain and suffering is different from other economic damages, such as medical bills or lost wages. Economic damages are intended to reimburse the victim for specific financial losses, while pain and suffering seek to compensate the victim for physical and emotional damages. “Damages” is a legal term for the money owed to you in a personal injury claim or lawsuit.
When calculating pain and suffering damages, courts will consider factors such as the severity of the injury, the length of the recovery process, and the impact on the victim’s quality of life. Here are the two main classifications.
Physical Pain and Suffering
As the name implies, physical pain and suffering cover all the discomfort and distress caused by physical injuries. When someone is involved in an accident, they may suffer extreme pain that lasts for days, months, and extreme cases, for the rest of their lifetime. They may also be permanently injured, which also causes constant physical pain and discomfort.
Some examples of physical injuries that qualify for a personal injury claim are:
- Traumatic Brain Injury
- Head Pain
- Neck Pain
- Nerve Damage
- Dislocated Joints
- Broken Bones
- Eye Injury
- Dismemberment
- Paralysis
Emotional Pain and Suffering
Also called mental anguish in some states, emotional pain and suffering cover all the mental harm the victim sustained after the accident. This emotional distress can have a major impact on someone’s life, causing them to develop issues that temporarily or permanently affect the way their brain works. When this happens, they may no longer be able to perform their tasks and could suffer constant psychological pain.
Emotional pain and suffering includes, but are not limited to, the following:
- Post-traumatic Stress Disorder (PTSD)
- Depression
- Anxiety Disorders
- Insomnia or Loss of Sleep
- Cognitive Changes
- Grief and Anger
- Change or Decline in the Quality of Life
Mental and emotional trauma are much harder to prove than physical pain. In addition, many people usually don’t want to discuss these deeply personal matters for their pain and suffering claim, especially in front of a jury. Thankfully, you can work with an experienced personal injury attorney to demonstrate the magnitude of your suffering without adding to your emotional distress.
How Are Pain and Suffering Damages Calculated?
Quantifying pain and suffering damages may not seem like an easy task, but there are ways that an insurance company and the legal system can determine the settlement value. Still, the amount will vary from case to case because of unique circumstances and facts surrounding the incident. Here are the two ways pain and suffering are calculated.
The Multiplier Method
How It Works
The most common method used for calculating pain and suffering compensation is the multiplier method. It’s what most insurance carriers use for settling claims. In the multiplier method, the insurance company and your lawyer will assess the intangible damages you suffered and rate them from 1.5 to 5. These are the multipliers, and they indicate the severity of your pain and suffering.
The higher the multiplier, the more serious the personal injury is. For example, if you sustained grievous injuries like permanent paralysis or blindness, then the multiplier will be close to five. There are also other factors that come into play when assigning the multiplier. For example:
- The more obvious that it was a negligent party’s fault, the higher the multiplier.
- If you have clear proof of pain from verified records, it increases the multiplier.
- The longer the period of recovery for non-permanent damages, the higher the multiplier.
Example Scenario
In our example, we’ll calculate the total compensation you might get from a car accident. First, let’s add the economic costs of the accident:
(Medical Bills – $10,000 + Car Repair – $5,000 + Lost Wages – $8,000)
In this example, the total economic damages are $22,000. However, the car accident resulted in several broken ribs. You also suffered other severe injuries like a concussion and internal bruising. Finally, the constant pain from your wounds has given you insomnia. All these resulted in emotional distress and mental pain. Your lawyer will work to prove that these have happened to you, which can lead to a multiplier of around three to four in the best-case scenario.
Let’s say the $22,000 will be multiplied by 3. You’ll be getting $66,000 in pain and suffering damages or non-economic damages. Add $22,000 and $66,000 together, and you’ll get $88,000. This will be the estimated amount you’ll get for the personal injury claim or lawsuit.
Criticisms
The biggest issue with the multiplier method is that it’s highly dependent on the value of the economic damages. If it’s small, then you might get less compensation than you deserve, even with a high multiplier. This is especially true for the types of injuries that may worsen over time. However, the multiplier method still remains a more reliable way to cover future damages more than the per diem method.
The Per Diem Method
How It Works
“Per diem” is Latin for “per day,” so this means that you’ll be getting a specific daily value for the non-economic damages. To get to this amount, the same factors followed in the multiplier method will be taken into consideration. The insurance company and your attorney will negotiate until they reach a decision that satisfies all parties.
Much like in the multiplier method, injury victims can expect a higher per diem amount for their pain and suffering. However, the most influential factor that determines the per diem value is the person’s daily wage. You can expect an average of $200 a day. Still, every case is unique. You could get a higher amount when other factors are accounted for.
Example Scenario
In this example, we’re going to take a look at someone who suffered bodily injury in the workplace. They have bruising and broken legs that cause pain and suffering, both physical and mental. In addition, they’re unable to come to work and have to take physical therapy sessions. Overall, their economic damages amounted to $25,000.
To get the pain and suffering or non economic damages, the attorney will reference the plaintiff’s daily wages as a baseline. In our example, it’s $200. Then, they’ll need to provide the total number of days of the plaintiff’s pain. This will be more difficult to prove. Let’s say that in this scenario, the person had to endure around 100 days of suffering. We’ll multiply $200 and 100 days, giving us $20,000 for pain and suffering damages.
The estimated amount for this personal injury settlement is $25,000 + $20,000 or $45,000.
Criticisms
The per diem method is ideal for putting a value on the accident’s impact on the victim’s life. However, this only covers a certain time period, determined by how long the person suffered physical pain and mental pain. Potential future issues will not be covered, such as the long-term effects of physical injury and how they will affect the person’s life.
Who Pays for Damage?
In general, the insurance company of the party fault will be the one paying for the pain and suffering settlement. They will be the ones negotiating with you and your personal injury lawyer to reach a reasonable amount for your claim. However, if the at-fault party is challenging liability, then the claim may turn into a lawsuit. You’ll need to undergo a trial in the court of law and prove that you should be compensated.
In case the at-fault party doesn’t have liability insurance and related policies, then they might have to pay the settlement out of pocket or with their existing assets.
What Personal Injury Accident Can Lead to Pain and Suffering?
A personal injury case happens when someone suffers because of an accident. These accidents are usually caused by someone’s negligence, and the at-fault party can be individuals, organizations, companies, and even governments. Here are the most common ways someone can become an injury victim.
Vehicular Accidents
Car accidents are one of the most common causes of bodily injury. Negligent drivers can hit other vehicles and harm passengers and drivers because of speeding, driving under the influence, or distracted driving. As a result, the victims can suffer broken bones, bruising, wounds, and even paralysis. There’s also the psychological trauma of being involved in an accident, which can cause someone to develop PTSD and anxiety disorders.
Pedestrian Accidents
In a similar vein to vehicular accidents, pedestrian accidents are another way someone can suffer personal injury. Most of these happen when a driver commits reckless or negligent behavior that harms pedestrians, especially when the latter has the right of way. Even bikers are not exempt from these personal injury lawsuits.
Worksite Accidents
Workplaces like construction sites, manufacturing floors, and power plants usually contain many hazards and dangerous areas. That’s why companies must put measures in place to prevent employees from getting injured. When they fail to do this adequately, then their workers may suffer personal injuries. Explosions, exposure to corrosive chemicals, and malfunctioning equipment are just some of the scenarios where a personal injury accident can happen.
Medical Malpractice
Doctors and other healthcare professionals have a duty to provide the best standards of care to patients. When they fail in this aspect, patients can suffer grievous injuries or experience worsening conditions. Victims can file a personal injury claim when this happens. More specifically, you can sue for medical malpractice and get the compensation you deserve.
Slip and Falls
Unsafe conditions on properties can cause slips and falls. These usually happen because of wet floors, uncovered cables, uneven steps, and oily surfaces. When an accident occurs, the victim may get injuries like broken hips, head trauma, and broken bones. To cover pain and suffering damages, they can file a personal injury case to the owner of the establishment where the accident occurred.
Is There a Limit to the Compensation You’ll Get?
The answer is more complicated than you think. There’s a limit to what you can get from an insurance company, and that’s capped by the policy itself. In addition, there is this concept called split limits. These are two policy limits in a bodily injury insurance plan. The first represents the maximum amount the company will pay to the claimant, and the second is the maximum amount the company will pay regardless of the number of claimants.
Still, you can get a higher personal injury settlement if there are more at-fault parties. For example, if your accident was caused by several companies’ negligence, then you could file a claim for all of them at once.
The above is only for claims that don’t go to trial. If your personal injury case is tried, limits will depend from state to state. In New York, there are no damage caps, so you can theoretically get as much compensation as you deserve.
Ways To Prove Pain and Suffering
Unlike economic damages, assigning a monetary value to pain and suffering is a much harder task. You’ll have to prove the emotional and mental pain that you’ve experienced because of the personal injury. However, there are established ways to do this.
With the help of your experienced attorney, you can gather evidence that will strengthen your pain and suffering claim. These include:
- Medical Records: X-ray scans, laboratory results, and other records with hard data can provide tangible evidence of your suffering.
- Notes From Healthcare Providers: Documented comments from doctors, therapists, and mental professionals can reveal the impact of a personal injury that medical records may not show.
- Photos, Videos, and Other Forms of Media: Any form of media that can show your injuries and how grievous they were will help strengthen your case.
- Personal Documentation: These can come in the form of journals or diaries. Your own account can show the effects of the injury, especially on your emotional and mental health.
- Opinion From a Subject Matter Expert: An expert on personal injury claims and pain can help provide educated opinions. They’ll discuss the nuances of pain, emotional suffering, and related matters to the jury.
Presenting the types of evidence above can add to your emotional and psychological trauma, so make sure you work with a compassionate lawyer who knows how to work with an injured person. They will provide sound advice to help you navigate a tumultuous time while ensuring that every action you take will help your case.
For example, your medical records shouldn’t be in conflict with what you claim during negotiations or in court. There’s a common test used by doctors called a pain scale where you assign a value to what you’re feeling. If an insurance company asked you to rate your pain, a good attorney will advise you to tell the truth, even if that may not help your case. Conflicting evidence will only make proving pain a challenge.
Factors That Will Affect the Jury’s Decision
When you go to trial, you might need to face a jury when damages pass a certain threshold. They will have an easy time assigning the settlement value for the economic damages because the amount can be seen on medical bills, payroll, and other documents. Proving pain and suffering damages will be much harder due to their more intangible nature.
The defendant’s attorney will work to confuse the jury and minimize your pain and suffering, so it’s important to work closely with your lawyer to strengthen your case. Make sure that your answers match medical records, and be honest about how much the injury has negatively impacted your life.
Witnesses will also give you an advantage. You’ll want an expert on physical injury and pain who can convince the jury about the intricacies of pain and suffering. In addition, someone you know can testify about the struggles you’ve faced because of your injury. They should be able to tell facts about your life before the accident and after it. We recommend finding someone who the defense can’t call biased, such as a co-worker or your employer.
Should You Handle Your Case Without an Attorney?
Working with legal counsel to settle a personal injury case is always the best route to take. Even before filing a claim, you should already be working with a lawyer to understand what exactly you’re going for and what you need to do to get the compensation you deserve. If not, you can commit mistakes that result in low compensation or even losing the case. People without an attorney might:
- Fail to fill out and submit the needed documentation
- Unwittingly give recorded statements that will be used against them later
- Provide confidential medical records that weren’t necessary for the case
- Get coerced into admitting fault
Aside from committing mistakes, you’re also vulnerable to the tactics of an insurance adjuster. They’ll know if someone isn’t good at negotiating, and they’ll use their knowledge to make you agree to a less-than-ideal settlement. With a dedicated attorney, you’ll have someone who can fight to get what you deserve.
Let an Experienced Personal Injury Attorney Help You
Calculating the damages you’ll get for pain and suffering isn’t an easy process, and neither is getting the compensation in a pain and suffering lawsuit. For either scenario, you have us at The Pagan Law Firm to help you. We’ll serve as your legal counsel and representative, providing the services you need for any type of personal injury case.
Call us now at 212-967-8202 to learn more. You can also fill out our form to set up a consultation.
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