When someone’s negligent behavior injures another party, the injured party has the right to file an insurance claim for compensation for their monetary losses. Additionally, they may have the right to seek compensation for pain and suffering.
Pain and suffering references non-economic compensation. Unlike lost wages, medical bills, and other financial losses, it is difficult to place a price on pain and suffering. In addition, while medical bills, pay stubs, and other documents demonstrate financial losses, proving pain and suffering is more challenging.
While proving pain and suffering may not be simple, that does not mean that victims should avoid including it in their claim for compensation. Insurers know that the victim's personal injury attorney will likely seek compensation for pain and suffering in an accident claim. The primary challenge of the personal injury lawyer is proving the value of your pain and suffering.
Defining Pain and Suffering
A legal dictionary refers to pain and suffering as pain, anguish, inconvenience, and emotional trauma which accompanies an injury.
In cases where someone loses a loved one due to negligence, a surviving family member may seek compensation for the decedent’s physical pain and suffering. They may also seek compensation for the surviving family members’ pain and suffering, which encompasses the emotional trauma and anguish of the family.
Various Injuries and Pain and Suffering
Every accident is different. Whether someone is involved in an accident involving a reckless driver resulting in an injury to another driver, passengers, a motorcycle operator, or pedestrian, or someone suffers an injury caused by a deliberate action like abuse, the injuries are seldom the same.
Some of the physical injuries that victims suffer include:
- Back injuries
- Traumatic brain injury (TBI)
- Neck injuries
- Broken or fractured bones
- Internal organ damage
- Nerve damage
- Pulled, strained, or sprained muscles
- Dislocated joints
A search of the Centers for Disease Control (CDC) database shows that in one recent year, those 35 years and over represented nearly 5 million people across the United States who suffered a non-fatal injury from a fall. Poor property maintenance caused some of these injuries. These accidents often involve serious injury. A victim could potentially suffer life-altering injuries from a slip and fall accident.
Injuries do not have to be visible to cause a victim pain. For example, if the internal organ, nerve, or brain injuries are not visible, it does not mean the victim is not in pain.
In some accidents, such as those that leave a victim paralyzed, suffering TBI, or experiencing nerve damage, victims have physical and emotional pain. Their lives will likely never return to their pre-injury state.
Emotional Damages Included in Pain and Suffering
We may never think about the emotional impact of an accident on the victim. However, victims can suffer severe and permanent emotional challenges following a severe injury.
Some of the emotional damages a pain and suffering claim may include:
- Post-traumatic stress disorder (PTSD)
- Cognitive changes from head or brain injuries
- Fear, insomnia, anger, frustration
- Psychological trauma
- Diminished quality of life
It may often feel impossible to place a price tag on emotional suffering. This challenge does not mean that it is not significant. Emotional suffering is real and can have a long-term effect on a victim’s life.
Calculating Pain and Suffering: Insurer Methods
Insurance companies like certainty. However, pain and suffering calculations are uncertain, and each injury victim has a different level of suffering and pain. Insurers’ most common methods for calculating pain and suffering include a per diem (or daily rate) or a multiplier.
Here’s how to calculate pain and suffering:
- Multiplier Calculation - In general, an insurer will take the victim’s special damages and use a multiplier to calculate damages for pain and suffering. Special damages are any out-of-pocket costs that the victim would not have had to deal with had they not been injured. When an insurance company opts to use the multiplier method to calculate pain and suffering, they will consider several factors when identifying a multiplier. These include the severity of an injury a victim suffered, the anticipated recovery time, and the impact an injury has on the victim’s day-to-day functions. They may also consider whether there was doubt about the responsible party’s fault.
- Per Diem Calculation - This daily calculation is typically based on a person’s earning capacity before the accident that caused their injury. Let’s assume a person operating a motorcycle was thrown from their bike when struck at a stop sign and suffered a minor pelvic fracture. These fractures can mean up to 12 weeks of recovery time. Assuming the victim earns $75,000 per year, their daily pay rate is $300 based on 250 working days annually. The victim’s treatment lasts approximately 12 weeks (or 84 days). This calculation results in approximately $25,200 in pain and suffering damages.
Naturally, these are hypothetical scenarios, and insurers may still demand that a victim provide proof of pain and suffering.
Documenting Pain and Suffering
Some people have higher pain thresholds than others. Some people may take a small amount of prescription medication to control pain, while others need higher doses to fight the pain associated with the same injury. In most cases, the more documentation showing a victim’s pain and suffering, the better.
Here are some common ways to document pain and suffering:
- Medical records - A primary documentation source is a victim's medical records. Once someone is in an accident and seeks medical attention, there will be a record of the injury, the treatment for the injury, and the follow-up care the victim received. Mental health records may also help the case.
- Expert testimony - Few people better understand a victim’s pain than a medical expert who specializes in the victim’s specific injury. They can offer their opinion on the severity of the pain the victim likely suffers. This testimony happens in court if the case goes to court or through a sworn statement for the insurer.
- Victim records testimony - One of the steps a personal injury lawyer may request the victim take is maintaining a journal of their recovery. They may recommend the victim track their pain levels, emotions during recovery, and other factors related to their recovery. The victim may also testify regarding the effect an injury has on their life. This testimony may be verbal or written.
- Friends and family of victim testimony - Few people can objectively point to a change unless they knew the victim’s habits and mindset before suffering an injury. Asking friends and family members to provide information about the victim’s changes in activity due to their injury helps establish the basis for the victim’s pain and suffering claims.
These are just a few ways an experienced personal injury lawyer may prove a victim’s pain and suffering for compensation following an accident.
Insurers Will Fight Pain and Suffering Claims
Regardless of how well a victim and their attorney document a victim’s pain and suffering, the insurance company will likely fight back. They may claim the victim’s injuries did not cause that much pain, that the victim’s actions after an accident exacerbated their pain, or that the victim refused to follow the orders of their medical care team.
A personal injury victim should work closely with a skilled personal injury law firm. Insurers know that victims often do not understand the laws or the compensation they may seek. While a lawyer will make sure a victim understands their rights, insurers are under no obligation to make a victim aware of their rights.
How a Personal Injury Law Firm Helps Victims with Pain and Suffering Claims
A skilled personal injury lawyer can identify the experts that insurers deem credible to prove a pain and suffering claim. Often, accident victims will not hire an accident injury lawyer because they believe they cannot afford to pay the fees. However, in nearly all personal injury cases, a lawyer will agree to take the case on a contingency fee basis. Contingency fees mean a victim will pay only the fees an attorney pays out of pocket when acting on the client’s behalf. The client and the attorney agree to the fees in a retainer agreement. Unless the attorney successfully obtains a settlement for pain and suffering, the victim doesn’t owe any fee for legal services.
Lawyers assist victims in proving their claims and help get them their deserved compensation following an accident. In some cases, an attorney may learn their client has already received a settlement offer from the insurance company. When an attorney evaluates a case on behalf of a victim, they want to add value for the potential client. This means there are certain things a personal injury lawyer will look for in a claim, including whether they can get a larger settlement for the victim.
Negotiating With Insurance Companies
Once an accident victim files an insurance claim, an insurance adjuster will likely contact them.
The adjuster works for the insurance company, and their goals differ significantly from yours.
While a victim attempts to get compensated for their injuries, the adjuster works to ensure the insurance company pays out as little as possible: their job protects their employer from losing money from paying out a claim. The first portion of a claim an adjuster will likely challenge is the claim for pain and suffering, which may be a substantial part of the settlement demand.
Contact an Attorney to Understand Your Rights
Every person who suffers an injury resulting in an accident because of someone's negligent or deliberate action should seek a consultation with an experienced attorney with a successful track record. While prior successes in obtaining settlements do not always mean that the lawyer will obtain a high settlement in every case, trusting the attorney's experience can bring the victim peace of mind.
Personal injury victims should contact an attorney for a free case evaluation. There is nothing to lose in taking this first step, and there could be plenty to gain. A skilled lawyer often helps victims recover damages, including pain and suffering when filing a claim with an insurance company.