How are Pain & Suffering Damages Determined?
As an attorney with over 25 years of experience practicing Personal Injury Law, I’m frequently asked, “what exactly is Pain and Suffering”? The best way to understand it is to put yourself in the shoes of someone who has been injured because of someone’s carelessness. The situation quickly gets complicated and expensive.
In addition to the medical bills you have incurred and your lost income — which are defined as “economic damage” – you are experiencing pain and your injuries are limiting your activities. Who knows the long-term implications of your injury? Who knows how long the pain will last? There is a lot to worry about. In short, you are experiencing “Pain and Suffering.” These are all part of the damage and injury that you sustained in the accident.
What is “Pain & Suffering?”
“Pain and Suffering” is a legal term referring to all the “non-economic” injuries that you may have suffered as a result of the accident. It includes not just physical pain, but also emotional and mental injuries such as fear, grief, insomnia, and worry. It even can include the loss of enjoyment of life and your inability to carry on your normal activities. In almost every case the injured person should be able to recover compensation for their pain and suffering. Whether that amount is small or large depends of the facts of the case.
There are no strict rules for how an insurance company must calculate “Pain & Suffering.” There are generally two methods that I use. The first method is to multiply your actual damages (medical bills and lost wages) by a certain number, generally between 1 and 5. That number depends on the severity of the injury and the ongoing problems that you may experience from the injury. The second method is the per Diem (Latin for per day) approach. This way a certain dollar amount is assigned to every day from the day of the accident until recovery is reached.
Insurance companies are under no obligation to use either of these methods and usually do not. They often employ computer programs to determine what amount of any settlement covers “Pain & Suffering.” These programs consider not only the type of injury but the kind of medical treatment sought. As an example, insurance companies frequently consider medical treatment by a physician signifies a more serious injury than does treatment by a chiropractor. Keep in mind, if treatment seems excessive for your type of injury, the insurance company will not include all of the treatment in its calculation.
Proving “Pain & Suffering”
Damages for “Pain & Suffering” are recoverable – but it depends on how well the injured party’s attorney can prove your case. You’ll need to prepare the best documentation possible to improve your chances for a satisfactory outcome. The severity of your injury and accompanying pain and suffering can be shown through documentation such as photos, medical records and personal journals recording your physical and emotional feelings. Friends and family can also provide additional evidence. Proof of treatment by a mental health professional is also mandatory if you are claiming injuries like anxiety, insomnia or depression.
When an insurance company makes a settlement offer, how do you know what’s fair? You must remember that to them your claim is a business. They are trying to resolve it in an efficient, effective and cost saving way. They are going to try to be quick about settling and push for you to accept their initial offer.
Here is where working closely with your attorney makes a big difference. With our knowledge of the facts, proper documentation, and calculation with the multiplier or per Diem methods, we have a good idea of the amount of an appropriate settlement. Another factor that will help us judge the fairness of the settlement is the permanence of you injury.
Here is how a recent “Pain & Suffering” settlement worked:
We recently represented a young man who was injured when a vehicle on a highway lost control and struck the vehicle that he was standing next to. The vehicle struck him and came to rest on top of him in a ditch. He was lucky that he did not receive any broken bones or ruptured discs. His injuries could be classified as “soft tissue.”
The insurance company did not offer even the cost of medical care to settle the case. They thought that the medical treatment was excessive. We took the case to trial and, by working closely with the client, medical providers, and witnesses, we were able to present to the jury an accurate picture of just how these “soft tissue” injuries affected his life and were continuing to do so.
The jury came back with an award for Pain and Suffering in excess of 5 times the medical expenses.
Remember: You’re Not Alone.
The attorneys at Friend, Levinson & Turner Law make the legal process as stress-free as possible. We focus on recovering compensation for you – while you concentrate on your physical and emotional recovery.
If you or a loved one is injured or a victim of an unsafe product or the negligence of others, please call my office at 312-346-8465 or contact us using the form below.