How Do Lawyers Calculate Pain and Suffering?
People may have heard the phrase pain and suffering, but they may not realize that it is a crucial part of many personal injury cases. The question remains, what do pain and suffering mean from a legal perspective, and how do injury-related insurance claims or lawsuits calculate it?
Victims can recover two types of losses in personal injury claims: economic and non-economic. Economic damages include compensation for medical bills and lost income. In contrast, non-economic damages will cover the accident’s less quantifiable and more subjective effects, such as pain and suffering. Compensation for pain and suffering is usually the biggest component of non-economic damages.
Pain and Suffering Examples
Car accident victims can experience pain and suffering in various ways.
Let’s look at a more serious case first. Suppose someone was involved in a car accident that caused multiple broken bones and a severe concussion. An accident like that is pretty serious.
These injuries resulted in the claimant becoming depressed and angry, having difficulty sleeping, and losing significant appetite. Due to these troubles, their primary caregiver referred a psychologist and therapist to the claimant. The claimant is permitted compensation for mental pain and suffering resulting from the accident because all of these problems are directly related to the accident.
In some cases, mental pain and suffering can be so severe that victims cannot return to work after their physical injuries have healed. Despite healing from broken bones and concussions, this victim’s depression might persist for years after the accident. If this is the case, the victim can still file a claim for lost income or pain and suffering damages.
Here’s an example of mental suffering that is less serious. Let’s suppose someone suffers back strain in a car accident. They cannot exercise for several weeks, much less run the marathon they trained for. The claimant likely feels angry, frustrated, unhappy, and even a little depressed after missing the marathon. Though this claimant does not need mental health assistance, these effects still qualify as mental suffering.
Evidence of Pain and Suffering: Using Medical Records and Expert Testimony
During a personal injury case, your medical records reveal the nature and extent of your injuries. In some cases, you can call your doctor as a witness to describe the typical physical impact of your injuries in terms of pain, discomfort, and movement limitations. Psychologists or therapists can help establish the mental component of your pain and suffering.
How Recovery Length Impacts Pain and Suffering
Insurers and courts believe the more time a claimant has to recover from injury, the greater the amount of pain and suffering they deserve. Having this key factor documented in your medical records is the best way to establish it. There may be times when your doctor notes in your medical chart that you should not engage in certain activities while you recover.
Some doctors will only record your progress (or lack thereof) if you tell them about your recovery time.
Reporting your recovery to your doctor is very important for three reasons in your personal injury case:
- Your records showing a doctor’s visit four, six, or 12 weeks after an accident indicate your injury needed ongoing care.
- In determining the cost of your pain and suffering damages, your doctor will account for your ongoing pain, discomfort, stiffness, or immobility.
- From a medical standpoint, it’s sometimes impossible to fully recover from your injuries.
You Must Prove Your Claim
It is best to document/report your post-accident experience to show the type and intensity of your pain and suffering.
- For your medical records to reflect your pain or discomfort, tell your physician all the details.
- Ask for medication if you think you need it to control your pain or discomfort.
- You may want to schedule a medical appointment if you suffer continued pain or discomfort. You document your ongoing problems, and it makes good medical sense.
- Take note of any daily activities you cannot do or are having difficulty performing due to your injuries if your pain or discomfort affects your ability to lead a normal life.
- Take pictures of any visible injuries, such as swelling, discoloration, or wounds, and enable the date stamp feature on your phone or camera.
Additionally, keeping a journal of everything you experience because of the accident — missed work, headaches, anxiety attacks, sleepless nights — can prove extremely helpful in your case. Immediately following an accident, you may feel that you can’t forget the details of your injuries and how they affected you. People’s memories, however, tend to fade quickly. You can combat this problem by keeping a diary or journal.
Talk to a personal injury lawyer about your case if you need information tailored to your particular situation.
Loss of Consortium
A personal injury accident can result in a victim’s death, especially if they were involved in a collision with a tractor trailer. In these cases, the family of the deceased file a wrongful death claim to recover compensation for medical bills, lost income, and loss of consortium, and hold the negligent person accountable for their actions by hiring a truck accident lawyer.
After the death of a loved one, family members suffer from a loss of consortium. Grieving family members may receive special awards due to the pain and suffering they feel following a preventable accident.
Consortium loss includes:
- Guidance from parents
- Intimacy between spouses
- Affection and love
- Household duties
You can pursue other compensation from the loss of consortium not listed here.
Calculating Pain and Suffering
Personal injury judges rarely provide juries with guidelines for determining the significance of pain and suffering. Courts don’t give juries charts to look at when deciding how much to award. Generally, judges instruct juries to determine fair and reasonable compensation for the plaintiff’s pain and suffering based on their good sense, background, and experience.
Many other factors influence a personal injury case’s pain and suffering component.
Among them are:
- Good or bad testimony by the plaintiff
- Likability of the plaintiff
- Credibility of the plaintiff
- How the plaintiff describes the injuries in their testimony
- Whether the plaintiff seems to have exaggerated their pain and suffering
- How the plaintiff’s physicians substantiate the pain and suffering claims
- Whether the plaintiff lied about anything, even something seemingly insignificant (in general, a plaintiff who lies loses)
- Whether the jury can understand the plaintiff’s diagnosis, injuries, and claims
- Criminal history of the plaintiff
What Is My Pain and Suffering Claim Worth?
The insurance policy’s coverage limits your economic or non-economic damages. Bodily injury (BI) and uninsured/underinsured motorist (UM) coverage are the two most common types of auto insurance. Both BI and UM policies can cover pain and suffering, but only up to the policy limits.
You will most likely have to take a deposition if you are engaged in litigation. Depositions occur under oath before a court reporter who takes down the questions the defense attorney asks and your responses.
An attorney for the defense will ask you questions regarding pain and suffering during a deposition. If you seek compensation for pain and suffering damages, they can use the answers to these questions during the trial.
As part of the preparation for your deposition, your attorney may ask you how this accident has affected your life. If you want your attorney to represent you effectively, be prepared to provide real-life examples.
We Cannot Overstate the Importance of Witness Statements in Your Case
The ability to prove pain and suffering damages is one of the most important ways to ensure you receive a fair settlement. Always collect as much evidence as possible.
Witnesses who knew you before and after the incident can testify how the accident affected you. Since spouses and significant others live with you daily, they take notice of your physical condition before and after your treatment.
The nature of these witnesses is necessarily biased since they care about you and are unlikely to testify in a way that undermines your case. Thus, the defense often suggests to the jury that witnesses related to you by blood or marriage have a bias in the case.
It is often best to have before-and-after witnesses who do not have any personal stake in the litigation, such as employers or co-workers. They are not friends or relatives who may be biased but rather people who see the victim on a nearly daily basis and can provide first-hand information on their health.
Do I Need an Injury Attorney to Handle My Pain and Suffering Claim?
An experienced attorney should always handle a personal injury claim. Your insurance company may tell you this is an unnecessary step, and paying for an attorney while coping with the consequences of a personal injury may seem daunting. When a claimant tries to handle their personal injury claim on their own, they almost always make a mistake that significantly reduces the value of their case and their ability to get a settlement.
When handling personal injury claims without proper education and experience, it is very easy to make mistakes such as:
- Acknowledging fault by accident
- Making a recorded statement
- Doing things you don’t have to do, such as handing over medical records
- Failure to file the proper documentation on time
Most clients value their cases much lower than a qualified personal injury lawyer can achieve. Often, this is due to a lack of familiarity with damages they can claim, or even that they can receive compensation for some damages. A personal injury lawyer can help you navigate the process, which is why you need one.