How Are Pain and Suffering Damages Calculated?

How Are Pain and Suffering Damages Calculated?

Negligent behavior that leads to personal injury accidents and severe injuries can leave the at-fault party liable to pay damages. Following an injury accident, a victim could experience both physical and emotional pain and suffering damages. These damages could include loss of enjoyment of life, loss of society, and loss of consortium.

If you have been injured due to someone else's negligence, whether in a car accident, slip-and-fall, or any other personal injury case, you can bring a claim to recover compensation from the responsible party for your related damages. On top of economic damages, like medical bills, lost wages, and property damage, you can pursue compensation for non-economic emotional trauma.

After determining who was liable for your losses, you will need to prove your financial losses so you can rightfully claim the money you need to rebuild your life. This money is known as damages. Damages include calculable items (economic damages) like medical expenses as well as more subjective claims (non-economic damages) like pain and suffering. A personal injury lawyer can help you understand how to pursue a pain and suffering award in a personal injury claim.

What Are Pain and Suffering Damages?

Pain and suffering are a form of non-economic damages that encompasses both the physical and emotional suffering of an accident victim. It is the accumulation of all the pain, anguish, and mental trauma you suffered.

The term "damages" refers to the amount of money you may be awarded in a personal injury claim or lawsuit. Generally, damages are paid by the person who caused the injury due to their negligent or intentional acts. You may also receive compensation from the at-fault party's insurer.

Physical Pain and Suffering

Physical injuries that occur in an accident caused by someone else's negligence can be extremely painful, lasting for days, weeks, months, or years.  They can even be permanent, leaving the victim with constant physical pain.

Physical injuries that may qualify for pain and suffering compensation include:

• Back pain
• Headaches
• Neck pain
• Traumatic brain injury
• Nerve damage
• Broken or fractured bones
• Dislocated joints
• Organ damage
• Paralysis

Emotional Distress as Pain and Suffering

Emotional distress (also known as mental anguish under Florida law) is when someone's negligent actions result in an injured victim sustaining mental harm. This emotional pain can be severe and can cause lifetime permanent damage to the victim.  Emotional pain and suffering can also result in psychological and mental distress.

Emotional pain and suffering can include:

• Post-traumatic stress disorder (PTSD)
• Anger
• Fear
• Insomnia
• Grief
• Cognitive changes
• Loss or diminishment of quality of life

Most people are uncomfortable talking about their injuries. No one wants to be thought of as a whiner or complainer. Even the most severely injured accident victims are hesitant to discuss the full burden their injuries take on them. Using vignettes or stories that illustrate your life before and after the accident is crucial to proving pain and related distress when demonstrating the magnitude of your losses to the jury.

What Personal Injury Accidents Can Lead to Pain and Suffering Damages

Any type of personal injury accident can lead to pain and suffering. If you were involved in a personal injury accident, chances are you received a severe injury that can affect your daily existence and your ability to enjoy life, maintain relationships, and function. If the negligent actions of another party caused an accident that resulted in pain and suffering, you could file a pain and suffering claim with the at-fault party's insurance carrier.

The following are some of the accidents that can result in pain and suffering damages:

Pain and Suffering Damages Caused by Car Accidents

A driver can cause a car accident by committing negligent driving behaviors, such as distracted driving, drunk driving, and speeding. As a result, you could suffer severe physical injuries, such as broken bones, traumatic brain injuries, and spinal cord injuries.

Due to the circumstances of your injuries, you may not be able to perform daily functions, which can bring your life to a halt. On top of the physical pain, you might suffer from negative mental health effects that can also constitute pain and suffering.

In Florida, all drivers must purchase personal injury protection (PIP) to cover economic damages caused by a car accident. However, you cannot receive payment for pain and suffering damages through PIP insurance. You must pursue compensation for these damages by filing a car accident claim with the at-fault party's insurance company.

Other motor vehicle accidents can also result in pain and suffering damages, including truck and motorcycle accidents.

Medical Malpractice Can Cause Pain and Suffering Damages

When you need medical care, you put your life in the doctor's hands. It is their duty to keep you safe, protected, and healthy while under their care. Medical malpractice occurs when a medical professional fails to provide appropriate treatment and safety measures to keep you healthy because they violated the standard of care. This can include prescribing incorrect medication, misdiagnosing your injury, or providing negligent surgical treatment.

Following medical malpractice, you might still suffer from an injury or illness or develop a new one. Without proper medical care, you can experience pain and suffering linked to physical and emotional trauma for which you could pursue compensation.

In Florida, there was a cap on how much a medical malpractice victim could seek for non-economic damages. However, in 2017, the Florida Supreme Court decided to remove the cap on pain and suffering damage to prevent an insurance company from arbitrarily reducing compensation for severe damages. You can now pursue compensation for pain and suffering that equals the amount you have had to endure.

Pain and Suffering Damages Caused by Pedestrian Accidents

Pedestrian accidents occur when a driver negligently strikes a pedestrian with their vehicle. This can happen if the motorist drives onto a designated pedestrian area or runs through an intersection when the pedestrian has the right-of-way.

A pedestrian accident can result in severe injuries leading to pain and suffering. The injured pedestrian may not be able to walk, sleep, or function properly due to the accident's impact. They may also have to deal with the emotional impact of the accident. They can pursue compensation for pain and suffering damages by filing a pedestrian accident claim to hold the at-fault party responsible.

Slip and Fall Pain and Suffering Damages

Slip and fall accidents occur when a property owner has left unsafe conditions on their property that can lead to falls. Some of these dangerous conditions can include:

• Wet floors without signage
• Uneven or missing steps
• Holes in the floor
• Torn or loose carpeting
• Uncovered cables
• Oily surfaces

A slip and fall accident can cause severe injuries resulting in pain and suffering. To recover damages in a slip and fall accident claim, the property owner must have negligently allowed unsafe conditions on their property. You can recover pain and suffering damages with a slip and fall accident claim filed against the property owner's insurance company.

Worksite Accidents Pain and Suffering Damages

You can suffer from a worksite accident on dangerous worksites, such as construction sites, power plants, and manufacturing plants. The following are some of the ways you can suffer a worksite accident:

• Malfunctioning equipment
• Explosions
• Overexertion
• Slips and falls
• Exposure to harmful substances
• Heavy lifting

To recover pain and suffering damages from a worksite accident, someone other than your employer must have acted negligently to cause the accident. You cannot pursue pain and suffering damages from your employer through a workers' compensation claim. However, if a third party caused your accident, you may be able to request non-economic losses in a separate personal injury claim.

Personal Injuries Which Can Cause Pain and Suffering

There are many injuries where accident victims could receive money for pain and suffering, including:

• Scarring
• Whiplash
• Traumatic brain injuries
• Spinal cord injuries
• Back injuries
• Broken bones

Insurance companies will usually pay more to those with broken bones or those needing surgery than those with soft tissue injuries. The longer you have been treated by a doctor, the more likely it is your settlement will be higher. Your chance of getting more money for pain and suffering is also higher if you were transported to the hospital in an ambulance, which is why it is usually one of the first questions asked by insurance companies when you file a claim.

What Types of Damages Can You Add to Your Personal Injury Claim?

Damages can include easily calculable items known as economic or "special" damages, such as medical bills, lost wages, and property damage. Medical expenses may also include the care provided by mental health professionals.

General, or non-economic damages, are losses such as pain and suffering, loss of consortium, and loss of enjoyment of life.

It is more challenging to claim money for non-economic damages because there are no receipts or bills. In most states, when an individual is injured by the negligent acts of an individual or corporation, the law provides that the injured party can ask a jury to compensate them for both economic and non-economic damages.

Economic Damages Caused by a Personal Injury Accident

Economic damages are readily calculable—medical bills, lost wages, or anything with a set dollar amount. Economic damages are typically easily presentable to a jury. Jurors understand hard and fast numbers, like medical bills and lost wages, and are often willing to compensate an injury victim for these losses.

The following are some of the economic damages you can seek compensation for:

• Medical expenses
• Lost wages
• Lost earning potential
• Disability costs
• Property damage

General Damages Caused by a Personal Injury Accident

What becomes more difficult to prove and evaluate are so-called “non-economic” damages, commonly referred to as “pain and suffering” damages. These are also known as general damages.

General damages for pain and suffering refer to damages that are not monetary in nature. For example, damages for pain and suffering, loss of consortium, and emotional trauma are all examples of general damages. There are no tangible bills or receipts with a specific dollar amount for pain and suffering or emotional damage. Nonetheless, an injured person still deserves compensation for these losses.

Personal Injury Damages in an Insurance Claim vs. at Trial

Accident victims almost always suffer non-monetary damages that one cannot easily place a price on. This is why there needs to be a way to calculate pain and suffering damages that is fair for the insurance company, the injured victim, and their family.

In a personal injury trial, you can ask the jury to compensate you for non-economic damages, which include:

• Damages as the result of any bodily injury
• Pain and suffering resulting from the disability or physical impairment
• Disfigurement
• Mental anguish
• Inconvenience
• Loss of the capacity for the enjoyment of life either in the past or to be experienced in the future

These different “elements” of pain and suffering damages are essentially financial compensation for having to face challenges you otherwise would not have had to if it wasn't for the accident or injury. In minor incidents, this is compensation for an inconvenience, but in cases involving major incidents, it is compensation for your agony and suffering. For example, your medical bills may be covered, but that doesn't compensate you for the pain of never being able to pick up your grandchild again.

How Much is My Pain and Suffering Worth?

If your case does not go to trial, then your damages – whether economic or non-economic – are generally limited to the insurance policy's coverage limits. The two most common types of auto insurance coverage are bodily injury (BI) and uninsured/underinsured (UM) motorist coverage. Both BI and UM can be used to cover pain and suffering, but only up to the amount of the policy limits.

How Split Limits Work

Bodily injury coverage most commonly has two policy limits or split limits. One number represents the most the insurer will pay for one claimant, and the other represents the maximum the insurer will pay in total, regardless of the number of claimants involved. For example, this second number would come into play if there were injured passengers involved.

Additional insurance policies may be involved if your injury was caused by a major corporation or another large entity besides a private citizen. This typically means that a person cannot sue an insurance company for a million dollars if the insurance coverage the defendant held only had a limit of $50,000. However, if there are multiple liable parties or the defendant is a corporation, you may be able to collect significantly more compensation for your pain and suffering. If your case goes to trial, your recovery depends on whether there is a limit in that state.

If you were in an accident in a state where you are not a resident, you would need to know how that state values pain and suffering. In many states, there is no limit to the amount that someone can receive for pain and suffering. In Florida, there is no longer a cap on the pain and suffering damages you can seek, which means you might receive the total amount for how you suffered following a personal injury accident. A local personal injury attorney can explain your options.

How Can I Prove Physical Pain and Emotional Distress?

To establish physical or emotional pain and suffering, it is important to document evidence for both your pain and your suffering. This evidence may include:

• The documented or written opinion of an expert in a field related to personal injury that can testify to the intricacies of pain and suffering in general
• Medical records
• Photographs and videos
• Doctor, therapist, or mental health professional's notes
• Personal documentation (diaries/journals) of pain

The more evidence you can provide when suing for pain and suffering, the more the insurance company, judge, or even the jury will be able to see the negative impacts of pain and suffering on your life in ways that can't be seen through medical bills. This part is harder to prove and usually requires your testimony and possibly evidence from your family and/or friends.

Should your case go to trial, remember that even things such as the doctor asking you to rate your pain on a scale from one to ten are permanently documented and can be used. This means you must always be honest – do not tell the insurance company you are in immense pain when you've been telling the doctor the opposite.

Preparing for a Deposition

If your case is in litigation, you will most likely sit for a deposition. At a deposition, your testimony is taken under oath before a court reporter who is taking down questions directed to you by the defense attorney, along with your responses.

During a deposition, the defense attorney will ask questions regarding your pain and suffering. The answers can be used in the trial to determine whether you deserve compensation for the pain and suffering damages you seek.

In preparing for your deposition, your attorney may ask you to explain how this accident has affected your life. Be ready to give real-life examples so that your attorney can best advocate on your behalf.

How Juries Decide Pain and Suffering Damages

Properly illustrating your pain and suffering damages at trial for the jury to understand is essential to compensate you for your injuries adequately. While juries may have a relatively easy time determining the amount of compensation for economic damages – because those are numbers they can see reflected in documented medical bills and lost wages – they often struggle with placing a monetary value on someone's pain and suffering.

Even the standard jury instruction does not guide the jurors in determining a figure. Abstract concepts, ambiguity, and confusion are all tactics utilized by defense attorneys to dismantle your viable personal injury claim. This is why it is critical to be honest about the extent of your injuries and the complete impact those injuries have had on your life.

Providing a dollar range can also be beneficial in allowing the jury to determine what the final number will be. Presenting multiple stories from witnesses demonstrating the extent of your pain and suffering damages, including a monetary range for each, will allow the jury to compensate you for your losses. Your attorney can only use these examples of loss to illustrate your injuries if you provide them to him or her.

Witness Statements are Extremely Beneficial to Your Case

Proving damages for pain and suffering is one of the more important ways to ensure you receive fair compensation. The more evidence you have, the better. It is also one of the most complex issues that arise in a personal injury case.

Ensuring that you have the necessary documentary evidence—medical records, witness statements that establish the full scope of your pain and suffering, and expert testimony to verify your injuries and the pain they cause—are all things we have years of experience handling. Before-and-after witnesses are individuals who knew you both before and after the incident. They can testify about how the accident impacted you using their own observations and words. A spouse or significant other is typically an obvious before-and-after witness because they live with you day in and out and notice your physical condition.

These types of witnesses are inherently biased in that they clearly care about you and would presumably never testify in a manner that would undermine your claim. The defense will often attack witnesses that are related to you either by blood or marriage by suggesting to the jury that the witnesses are biased in your favor.

Often, the best before-and-after witnesses are people with no personal stake in the litigation, such as employers or co-workers. These are people who are not friends or relatives but see you nearly every day and can provide first-hand knowledge regarding the effects of the injuries on you.

Should I Try to Handle My Pain and Suffering Claim without an Injury Attorney?

It is highly recommended that you hire an experienced attorney before filing a personal injury claim. Insurance companies may try to tell you that this is an unnecessary measure, and the prospect of paying for an attorney while coping with damages after a personal injury can be daunting. When someone tries to handle a personal injury claim on their own, it almost always ends with the claimant making a mistake that significantly reduces the value of their case and any settlement they potentially could have received.

Without education and experience handling personal injury claims, it is very easy to make mistakes like:

• Accidentally admitting fault
• Giving recorded statements
• Handing over medical records when you don't have to
• Failing to file the proper documentation in time

When someone tries to obtain a settlement without an attorney, the insurance adjuster can usually tell that they are not a sophisticated negotiator. The injury victim will then agree to settle for an amount that is far less than what they could have received with an attorney. They could potentially leave hundreds of thousands of dollars on the table. Insurance adjusters are known to lowball unrepresented people dealing with severe financial pressure to take advantage of their situation. 

Clients often value their claims much lower than what is achievable with a qualified personal injury attorney. This is often because they are not familiar with the value of damages they can claim or even know they can seek compensation for certain damages. This is why it is important to have an attorney that can help guide you through the personal injury claim process. 

Methods for Calculating Pain and Suffering

Negotiating a personal injury claim settlement requires you to calculate a reasonable amount of money that you would accept to resolve your claim. Most insurance companies and injury attorneys rely on some type of formula to give them an idea of what a case is worth.  Since every personal injury case is unique, pain and suffering calculations depend upon each case's facts and circumstances.

In a personal injury case, there are two ways to calculate pain and suffering.

The Multiplier Method

The multiplier method is when the actual damages are multiplied by a number between 1 and 5, depending upon the severity of your injury. In order to decide what the multiplier is, the insurance company and your attorney will assess the above factors to determine how serious your injuries are.  The more severe, the more your number is multiplied by. For example:

(Medical bills, both past and future) x (multiplier) + (Total of Economic Damages, like medical bills, property damage, lost wages, etc.) = Reasonable Value of Case

The Per Diem Method

"Per diem" is Latin for “by the day.” As the name implies, this method uses a daily pain and suffering calculator for these kinds of damages.

Using this method, a specific dollar amount is paid for each day from the time of the accident until the patient reaches maximum medical improvement.  This is when a medical professional does not expect the victim's condition to improve further.

It's not easy to come up with a clear number that accurately reflects pain and suffering. How inconvenient or awful one person may consider a life-long back injury is not the same as another person's interpretation. Likewise, how you determine a dollar amount is even trickier since both pain and how it affects someone is extremely subjective.

Seek an Experienced Personal Injury Attorney Today

Hiring a personal injury attorney will greatly increase your ability to make a reasonable claim for pain and suffering damages. An experienced personal injury attorney will help you to construct an objective testimony of what you can no longer do compared to what you could do before the accident. At Dolman Law Group Accident Injury Lawyers, PA, we fully review every detail of your case in order to provide you with the best possible legal advice and exceptional representation.

We have handled thousands of pain and suffering claims by thoroughly documenting all of the above and knowing how insurance companies think. Unlike other Florida law firms that handle similar personal injury cases, we focus on quality representation rather than the number of clients we have. We take pride in the number of injured victims whom we have had the privilege of representing, but we take more pride in their level of satisfaction.

Let us help you maximize the pain and suffering amount of your claim. We offer free consultations to give personal injury victims a taste of how we can help them recover damages. Give us a call at (727) 451-6900 or leave us a message on our contact page.

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