Jeff Marion | August 22, 2023 | Personal Injury
When you negotiate a personal injury claim with an insurance company or a jury determines what a case is “worth,” the goal you’re after is compensation that makes you “whole.” In other words, “fair compensation” means enough money to balance out what’s been taken from you.
But if you’ve ever suffered serious physical injuries in a crash, you know that simply getting reimbursed for medical bills, lost wages, and car repairs doesn’t come anywhere even close to making you whole. What about the days or weeks you spent in the hospital, suffering? What about the constant pain that still keeps you up at night? What about the mental and emotional anguish? What about no longer being able to enjoy activities and hobbies you once loved? That’s where non-economic damages like pain and suffering come in.
In many personal injury claims—especially those that involve a serious injury—pain and suffering damages alone can easily account for most of the settlement or verdict. But “pain and suffering” can also be nebulous to define. How do you even begin to determine a “fair” settlement for a lifetime of limited mobility or a brain injury that drastically reduces your quality of life?
In this blog post, I’m going to talk a little bit more about what pain and suffering is, and how pain and suffering compensation is calculated in the context of a personal injury lawsuit.
What Is Pain and Suffering?
There’s no quick and easy way to define pain and suffering, but there are four general categories:
- Physical pain. It goes without saying that serious injuries can be intensely painful in the immediate aftermath of a crash. And many injury victims continue to deal with chronic or intermittent crash-related pain long after the wreck. If your physical suffering is keeping you from activities such as sitting, standing, sleeping, or concentrating, you should be able to recover compensation for it. Sleep deprivation is an important problem to discuss with your lawyer. If you are not getting a lot of sleep due to pain, it affects every other part of your health.
- Mental anguish. The best way to describe mental anguish is in terms of diagnosis. Many people deal with anxiety, depression, or post-traumatic stress disorder after an auto accident. If you’re suffering from nightmares, flashbacks, mood swings, anxiety, panic attacks, feelings of worthlessness, or any other signs of emotional distress or mental trauma, don’t ignore them. Talk to a doctor and talk to your personal injury attorney. These symptoms can be as debilitating as any physical injury and a major driver toward a higher settlement amount.
- Loss of enjoyment of life. Think of all the things you enjoy doing. Walking your dog. Playing pickup basketball. Gardening. Riding your bike. If you can’t enjoy those things anymore—whether because your injuries make them physically impossible or you’ve lost the motivation due to your mental anguish—that’s loss of enjoyment of life. An experienced personal injury lawyer should ask you focused questions about your life before and after the crash, but don’t hesitate to share more details when you think of them. Not only can you recover compensation for loss of enjoyment of life, but this information can also further humanize your injuries and help your story resonate with potential jurors. Please note that this is a double-edged sword: claiming loss of enjoyment of life can open the door for the defense to pry into prior mental health history. Please make sure that you talk to your lawyer about any previous mental health treatment.
- Loss of consortium. This is a legal term that essentially means “loss of companionship.” In the context of a wrongful death case, it could include the loss of a spouse, or children losing the guidance and love of parents. Loss of consortium in personal injury cases generally includes loss of intimacy with a partner, such as loss of sexual function or desire.
How Are Pain and Suffering Damages Calculated?
Despite what you might have seen online, you can’t just punch some numbers into a pain and suffering settlement calculator and expect that’s what you’ll get from an insurance company. The short answer to “What is my pain and suffering claim worth?” is, more or less, “Whatever a jury thinks it’s worth.”
That said, insurance companies tend to use one of two common methods as a baseline:
- The multiplier method. Take the total economic damages (medical expenses, lost wages, etc.) and multiply it by a certain factor—usually somewhere between 1 and 5. The factor chosen is determined by the severity of the injury. So, for example, if you suffered soft tissue injuries that healed completely and you were back to normal in a few weeks, a factor of 1 might be used. If you’re permanently disabled, a factor of 4 or 5 might be more appropriate.
- The per diem method. In this method, you count the number of days you have experienced pain (or sometimes days until you reach maximum medical improvement) and multiply that by a daily rate. The daily rate can be adjusted according to the severity of your injury, but most of the time it’s based on whatever your typical daily wage is.
You probably noticed there’s still a whole lot of subjectivity with both strategies. If you have a big case—say six figures worth of medical bills and other economic losses—whether the jury uses a 3, a 4, or a 5 as a multiplier makes a huge difference. You might also have guessed (correctly) that choosing one method or the other could lead to a significantly different calculation. The jury also isn’t required to use either method. They have free reign to calculate pain and suffering damages using whatever logic they want.
So, in the end, it ultimately comes back down to “whatever a jury thinks it’s worth.” Or, if you settle your case before trial, it can come down to whatever the insurance company is willing to pay to avoid the risk of a big jury verdict.
Further, in many states—including New York, where I practice—jury awards for pain and suffering are divided into “past pain and suffering” and “future pain and suffering.” The future category might include things like ongoing pain (or worsening pain) from a degenerative condition, expected future surgeries and therapies, and more.
How Do You Prove Pain and Suffering Claims?
At the risk of sounding obvious, understanding how to calculate pain and suffering damages doesn’t matter much if you can’t prove to the insurance company (or jury) that your pain and suffering is legitimate in the first place.
You can’t always point to an objective medical test result as conclusive proof of physical pain or emotional anguish. Symptoms are self-reported in many cases. That means the insurance company is probably going to accuse you of lying about what you’re going through or at least stretching the truth.
Some tactics that you might use to prove your losses include:
- Doctors and medical records. It’s true that there might not always be an objective test that “proves” you have chronic pain or anxiety, for example. But seeking regular medical treatment, following your doctor’s treatment plan faithfully, and having your treating physician write a letter for your case can all help tremendously.
- Testimony of loved ones. Friends, family, coworkers, and other people who knew you well both before and after the auto accident can offer persuasive testimony about how your injuries have dramatically changed your life.
- Video evidence. You and your attorney might consider putting together a “day in the life” video to show the impact of your injuries. It could show, for example, how difficult it is to get out of bed or get dressed, or how you need help to accomplish basic tasks like cooking, showering, or using the restroom.
- Pain journal. Consider keeping a daily log of your experiences. Record information such as where you are on the pain scale and what tasks you weren’t able to accomplish or needed help accomplishing. A journal can help strengthen your case when combined with other forms of evidence.
Need Help? Talk to Jeff Marion Today
It’s worth repeating: in a big personal injury case, the value of just your pain and suffering damages could be several times greater than your actual monetary losses. Courts and juries really do take pain and suffering very seriously, but that doesn’t mean it’s easy to settle on what’s fair.
If you’re not sure what your case is worth, or even if you have a case, give me a call. I’ve been fighting for victims of car accidents, falls, defective products, and other kinds of personal injuries in Buffalo and Western New York for more than 25 years. I’d love to talk with you about your case and see if I can help you get the most compensation possible for your claim. You can set up a free initial consultation with me by calling (716) 589-6655 or using the contact form on this website.
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