How are Pain and Suffering Damages Calculated?

Friday, November 10, 2017

How are Pain and Suffering Damages Calculated?

Written by Malman Law, reviewed by Steve J. Malman.

If you are involved in an accident and suffer serious injuries, you may file a personal injury claim. As part of your claim, you may qualify for pain and suffering damages. Pain and suffering damages are offered in addition to your general expenses (i.e., your medical bills, lost wages, travel costs, etc.).

Often, pain and suffering damages are the highest percentage of the compensation, because they are calculated by multiplying your computed damages with a multiplier to come to an amount for pain and suffering.

Putting a dollar amount on your physical and emotional pain is difficult, and you may wonder how an insurance company or an attorney does it. Before you can fully grasp the concept of calculating damages, you must understand what the courts see as “pain and suffering,” and how much a person could potentially collect.

What Constitutes Pain and Suffering?

Pain and suffering damages focus on the physical, emotional, and mental stress you experience because of your injuries.

These stressors you experience can include:

• Physical Pain – Physical pain comes from the actual injuries. This may consist of any surgeries, treatments, therapies, and follow-up appointments that caused physical pain as well – if they are part of the recovery process for your accident-related injuries. You can also claim compensation for the detrimental effects that these physical injuries have on your everyday life.
• Mental Anguish and Emotional Suffering – These are a byproduct of the physical injuries, but can be just as severe.

When you file for pain and suffering, these damages are in addition to lost wages, medical costs, and other injury-related expenses.

When Does Insurance Compensate for Pain and Suffering?

Pain and suffering damages are given to victims that have physical or mental pain. These “pains” must be connected to the original injury. More so, the injury must be the result of someone’s negligence, carelessness, or intentional malicious acts – mainly the elements required to initiate a personal injury case.

Most personal injury claims will include pain and suffering, because without pain and suffering, there may not be a valid claim.

How Insurance Companies Calculate Pain and Suffering

Putting a monetary value on someone’s physical pain, anguish, and even mental suffering is complicated. It is one of the more difficult areas of personal injury law because both sides are arguing over the validity and cost of someone’s pain and suffering.

So, you may ask yourself how attorneys would know what a fair and reasonable settlement would be for pain and suffering – and how they put dollar values on your physical pain.

The answer is that there is not just one set method. The courts, insurance companies, and attorneys use a variety of methods – with two of the most commonly used methods being the multiplier and per diem approach.

• Multiplier Method: The multiplier method takes actual damages and multiplies them by a number ranging from 1 or more. The more severe the injury, the higher the multiplier value. The amount calculated will serve as the pain and suffering damages a victim receives.
• Per Diem Approach: Per diem has a set amount used each day to compensate the victim every day he or she suffers from the injury and each day until they recover.

Realize that attorneys and insurance companies are not obligated to use these methods. Sometimes insurance companies rely on software programs that determine the settlement based on numbers they enter relative to the case. These programs rely on sophisticated algorithms that not only consider your type of injury but medical treatments you sought for that injury.

Factors the Insurance Claims Adjuster Considers

Specific factors surrounding your injury, prognosis, and treatments received will also affect the calculated pain and suffering damages. Naturally, an injury that is permanent will have higher pain and suffering values than an injury where the victim fully recovers.

Some factors that will increase or decrease pain and suffering values include:

• The severity of the injury. Soft tissue injuries, such as sprains, lacerations, and bruises have lower multipliers. This is because a soft tissue injury is typically non-critical, and victims eventually recover. If, however, that soft tissue was combined with ruptured discs or hard injuries that require surgery, the insurance company increases the multiplier used.
• The liability of the defendant. Sometimes, the defendant’s liability is questioned. If the adjuster has enough grounds to challenge it, or they argue that the victim was partially at-fault, they may reduce the multipliers in their pain and suffering offer.
• Future prognosis for the victim. A serious injury that requires ongoing, extensive medical treatments will obviously have pain and suffering that continues to linger long after the settlement. Any time a victim has extended pain and suffering, the multipliers increase.
• Case history and jury verdicts. Jury verdicts can be higher for some types of cases, and insurance companies know this. Therefore, they will compare jury verdicts and settlements on record with similar injuries to help them determine how much they should pay in pain and suffering damages. Your attorney will also review these past cases to help him or her decide whether you are receiving a fair settlement.
• Impact on lifestyle and emotional health. Some claims will not fit the standard multiplier method. In this case, the insurance claims adjuster needs to consider the effect on the victim’s mental health, future well-being, and their lifestyle. For example, a young victim with a permanent scar on their face might receive a higher value, because they will live with a reminder of their injury for decades.

What Is a “Fair” Settlement?

The insurance company might offer you a settlement that includes damages for pain and suffering. So, how would you know that what you have been provided is “fair” for your case?

A multiplier only gives a ballpark figure, or “jumping-off” point. It is also important to realize that when  juries are computing what damages award they feel is fair, they do not use multipliers. This means that pain and suffering damages can vary greatly when you go to trial and a jury gets involved.

To know if a settlement is fair, your attorney will consider the following:

• Whether or not you have additional circumstances that increase or decrease the value of that pain and suffering amount. As previously discussed, permanent injuries increase pain and suffering.
• Whether the evidence is strong enough to prove that the defendant was at fault, or if the evidence is too weak to establish fault efficiently. The stronger the evidence, the easier it is to receive maximum pain and suffering damages.

Punitive Damages and Your Pain and Suffering

Punitive damages are a separate form of damages awarded in addition to general damages. Punitive damages are awarded when the conduct of the at-fault party was malicious, grossly negligent, or criminal.

Evidence that Strengthens Your Claim

The injuries you sustain in an accident can extend beyond the physical realm. You may suffer from trouble sleeping at night, depression, or post traumatic stress which can manifest in a wide number of ways. For instance, someone suffering from post traumatic stress may not even be able to get into a motor vehicle without a panic attack. These are all valid signs of suffering that go beyond the physical.

And while you might know the pain and suffering you’re experiencing, the judge and jury do not. Therefore, your attorney must use evidence to show that your claims are more than just words. The more evidence your attorney presents to create a complete picture of how your life has been negatively impacted, the more you will receive for pain and suffering.

Evidence your attorney will use to do this includes:

• Creating the Connection: Your attorney uses evidence to connect the pain and suffering of your injuries to the accident. The stronger the connection, the more likely the jury is to award you a fair pain and suffering settlement.
• Personal Testimony: To paint an accurate picture of your pain and suffering, your attorney will ask that you testify in court. Here you will discuss the surgeries, treatments, and everyday pain you experience. You will also discuss the mental and emotional impact of your injuries – so that the jury can fully understand how your injuries have affected your quality of life.
• Doctor Testimony: Your treating physician’s testimony is essential too. He or she offers the prognosis, treatments, and discusses the pain a victim with these injuries would normally suffer.
• Expert Witnesses: An accident reconstructionist can display how the incident occurred, what happened to your body in the accident, and the likelihood that you suffered severe injuries. By showing the jury the severity of the crash, they are more likely to believe your pain and suffering claims.

How a Personal Injury Attorney Negotiates a Better Settlement

Accurately calculating pain and suffering requires someone that can separate the physical from the emotional value of your case. As a victim, you suffer everyday with everything from physical pain and limitations – to anger and depression. Asking you to value your injuries is impossible, and you should not be burdened with negotiating your pain and suffering with an insurance company.

An injury attorney from Malman Law can help.

Our advocates are here to fight for your right to compensation. We will ensure you receive a fair settlement for all of your damages. Schedule a free, no-obligation consultation today by calling our office at 888-625-6265, or by requesting your appointment online.