How To Determine The Value of Pain and Suffering for Personal Injury Claims
If you’ve been the victim of someone’s negligence — whether it’s through a car accident, a defective product, or a slip-and-fall injury — you’ve more than likely experienced some form of pain and suffering. But given that pain and suffering aren’t easily quantifiable, and the injured party is the only one who truly knows the extent of their pain and suffering, how is such a subjective figure calculated when awarding general and compensatory damages to a victim in a personal injury insurance claim? Let’s examine what falls under the definition of pain and suffering, what steps you should take to ensure you’ve compiled all relevant information for demonstrating your case at trial, and how insurance companies calculate pain and suffering damages in different types of personal injury claims cases.
How is “Pain and Suffering” Defined Within Personal Injury Law?
Pain and suffering is legal terminology that refers to any type of injury that a plaintiff may suffer as a result of an accident. It’s important to keep in mind that pain and suffering includes more than simply physical pain. It can also include emotional and mental injuries such as fear, post-traumatic stress, grief, worry, trouble sleeping, overall inconvenience, and even loss of enjoyment in life. The types of injuries either fall under two different types of damages — economic losses, or non-economic losses.
Economic Losses: Include monetary damages that are easily calculable like:
- Cost of Medical bills
- Cost of Lost wages
- Cost of property damage
Non-Economic Losses: These damages, also called “Pain and suffering,” are not readily measurable, and can include:
- Physical pain (bodily injury that is temporary or permanent)
- Physical disability (Paralysis, Spinal Injury)
- Mental anguish (Anxiety, PTSD)
- Loss of a family member
- Loss of job/career
In almost every personal injury case, the plaintiff should be able to recover an amount for pain and suffering damages through a personal injury compensation claim. That amount, however, can vary considerably depending on what can be proven through medical tests, expert witness testimony, and a future prognosis. Figures for two nearly identical pain and suffering cases can range from insignificantly small to hundreds of thousands of dollars, despite both plaintiffs sustaining similar injuries. In other words, there is no exact science to calculating pain and suffering, and it can often depend on your attorney’s ability to make an argument on your behalf, whether the judge presiding over your case is sympathetic to your situation, and if your case is taken to trial before a jury.
What Immediate Steps Should You Take After Being Seriously Injured?
The first step is to establish that the defendant is responsible (liable) for your injuries. This can be proven through police reports, insurance claims, and medical procedures required after your accident.
You will also need to present evidence of all your losses (referred to as “damages” in legalese) associated with the incident. Once you’ve presented the proper documentation, the insurance company should compensate you for your medical expenses as well as any lost wages you incur. In addition, the insurance company typically provides compensation for your general “pain and suffering.”
How Does an Insurance Company Calculate Pain and Suffering Damages?
Individuals who have been injured because of someone else’s carelessness can typically seek compensation from the at-fault party’s insurance company. This is what is known as filing a third-party claim.
There is no specific rule for how an insurance company must calculate pain and suffering. However, most personal injury attorneys were trained to use one of two methods for calculating pain and suffering. The first method involves multiplying the plaintiff’s actual damages (such as medical bills and lost wages) by a certain number, (generally between 1 and 5, depending on the severity of the injury).
As an example, if a plaintiff incurs $5,000 in medical bills related to a broken leg in a car accident, the plaintiff’s attorney might multiply that by three, and conclude that $15,000 represents a reasonable amount for pain and suffering.
Alternatively, many plaintiffs’ attorneys use what’s known as a per diem (translated from Latin as “per day”) approach. By using this method, a certain dollar figure — perhaps $500.00 — is assigned each day following the date of the accident until the plaintiff has recovered to the fullest extent possible.
Insurance companies, however, are under no obligation to consider these types of methods when calculating pain and suffering. Many companies rely on computer programs that use algorithms to determine what amount of any settlement offer should be allotted for pain and suffering. Such programs typically take into account not just the type of injury, but the type of medical treatment that was sought by the claimant.
As a general rule, insurance companies tend to consider medical treatment by a physician to signify a more serious and compensable injury than treatment by a chiropractor. Insurance companies also take into account the duration of time the claimant sought such medical treatment. If the treatment seems excessive for a specific type of injury, the insurance company will traditionally not include all of the treatment in its calculation of pain and suffering.
Additionally, many law firm websites include a personal injury claims calculator, where you can enter data such as the types of injuries sustained, the estimated medical bills, etc., and receive a general quote for what you might expect to receive in damages. Keep in mind, however, that these are very general, and often inaccurate, estimates. The truly best way to determine an accurate picture of what you can expect to receive in damages is by providing your attorney with every detail — none too insignificant — so she can present your case fully and accurately — demonstrating the injuries you’ve sustained, how said injuries have affected your quality of life, what lost wages you’ve incurred, and any emotional effects from the accident. Taking all of that information into consideration is how you can be sure that you will receive a satisfactory settlement.
Proving Pain and Suffering
Damages for pain and suffering are recoverable, but proving the extent of such pain and suffering can be a challenging process. What is considered ‘proof’ of a particular type of injury may take many forms. The more evidence you have to support your claim, the more likely you are to recover an amount you find equitable.
The extent of one’s injuries and accompanying pain and suffering can be demonstrated through documentation such as photographs and daily personal journals that record the plaintiff’s physical and emotional feelings over time. Additionally, documentation from friends and family can provide supporting evidence of how, specifically, a particular injury has negatively impacted the plaintiff’s life. Proof of treatment by a mental health professional is also important, and in fact required, in cases where the plaintiff claims injuries such as increased anxiety, insomnia, or depression.
How Do You Know If Your Settlement Offer Is Fair?
If an insurance company offers a settlement that includes compensation for pain and suffering, how can you be sure it’s a reasonable offer? A common practice is to use either the multiplier method or the per diem method (noted above) to determine a ballpark figure.
Once you have a general estimate of what you believe the figure should be, you should always consider whether there were additional circumstances that might increase or decrease the estimated amount.
As an example, if a car accident left you with a permanent scar on your face, such a factor could be viewed as requiring an increase to the figure of pain and suffering that would be deemed fair. Conversely, a pulled muscle in your wrist that healed quickly will not be worth much in terms of pain and suffering damages.
It’s very important for you to be aware of these factors when considering an offer from an insurance company. You will need to examine and understand how the insurance company came to value your pain and suffering before determining whether their offer is reasonable and fair.
Who Ultimately Determines My Total Claimable Value?
Your lawyer and insurance agencies work together to mutually anticipate the compensation value. Insurance companies are known for making arguments that victims are overstating their pain in an effort to claim more money.
This is why it’s imperative that you find an experienced and reputable personal injury lawyer to handle your case. Said attorney should have experience in dealing with such insurance companies who look to reduce all claims, regardless of legitimacy. Your attorney will take into account the following factors to predict the multiplier values and the appropriate monetary figure for the damages and losses you suffered:
- The severity of accidental injuries
- The impact of injuries on your life, relationships and career
- The length of time from accident till full recovery
- The type and amount of medical treatment that you will need
The entire personal injury claims process — from accident to recovery to eventual settlement — is complex and can be a terrible burden on you, the plaintiff. Hiring a personal injury attorney who understands and appreciates the monetary value of your suffering, and will help you to recover the largest sum of damages, is of critical importance.
The first step you should take, following being injured in an accident, is to reach out to a qualified attorney who can guide you through the legal process. You need to be assured that your attorney has your best interest in mind, and be able to trust him or her completely.