When someone is injured in a car accident, they likely are facing some pain once the initial shock wears off. The pain is real, whether that pain is from the aches and pains associated with their body being tossed around inside a vehicle in a car accident or they have suffered a more debilitating injury.
However, when filing a personal injury claim against the responsible driver, some victims may be eligible to include damages for pain and suffering. Keep in mind these damages are separate from monetary damages, such as medical bills, lost wages, and damage to a vehicle. Pain and suffering are considered non-economic or general damages, and they can vary widely based on several factors.
What Factors Play a Role in Pain and Suffering Calculations?
Facing any injury can mean dealing with pain. However, some factors can make a significant difference in how much pain someone is dealing with following a car accident.
- Age of victim. We tend to think that younger people are more resilient to pain, but some studies show this is not the case. According to Frontiers in Aging Neuroscience, in elderly victims, there is often a higher pain tolerance. This does not mean the victim is suffering any less; it merely means they can tolerate more pain than someone who is younger and suffers the same injury.
- Type of injury. A person who suffers a broken bone will suffer pain from the time of the injury, which often lasts until the injury is fully healed. Someone who suffers a back or neck injury could suffer lingering pain for years after an accident, depending on the severity of the injury.
- Impact on victim's life. When someone suffers a broken bone, the impact on their life is usually short-lived. However, a victim who suffers a traumatic brain injury (TBI) may be forced to endure the ramifications of the injury until the end of their natural life.
These factors (as well as others) will all be used to determine what amount of compensation an accident injury attorney may demand as part of a settlement on behalf of their client.
Insurance Company Adjusters and Pain and Suffering
Victims of car accidents and their families should understand insurers take a dim view of pain and suffering. While they may recognize this will be included in a claim demand, they often use simplified calculations to determine how much they will pay for pain and suffering.
These calculations do not usually make sense to victims.
You might expect more pain and suffering if you case involves:
- Wrongful death. Because a wrongful death suit is a personal injury lawsuit where the victim has lost their life, pain and suffering claims are more common. Not only can the party be held accountable for the pain and suffering the decedent was forced to deal with leading up to their death, but there may also be additional compensation for family members who are forced to spend the rest of their lives without the love and companionship of a loved one.
- Severe injuries. When a victim suffers compound fractures, injuries that lead to permanent scarring or disfigurement, or internal injuries which may require multiple surgical procedures, there may be additional compensation available for pain and suffering.
- Mental anguish. Not all pain is physical. Mental pain and suffering can occur in numerous cases, such as traumatic brain injury, amputations, or permanent disfigurement due to scarring. One cannot discount the mental anguish, which is often a part of pain and suffering.
Remember, the legal definition of pain and suffering is “the physical and mental distress suffered from an injury.” While an insurance company may use a computer model to calculate how much they are willing to offer for pain and suffering, no boilerplate answer can calculate the actual harm pain and suffering has done to a car accident victim.
Proving Pain and Suffering as Part of a Claim
One of the reasons pain and suffering claims are so challenging is because, like every aspect of a personal injury claim, they must be proven. This is not as challenging as some may believe.
Some ways to strengthen pain and suffering claims include:
- Medical documentation. Medical records which contain information regarding limitations that a medical professional has restricted a victim's activities while recovering can be very helpful. For example, limitations on lifting certain weights may impair a victim's ability to care for their child, work, or do simple tasks around the house. This documentation is also helpful when a victim requires mental health care following a car accident.
- Witness statements. Friends and family members of a victim can be ideal witnesses to prove pain and suffering. For example, they may be able to provide statements regarding the day-to-day struggle associated with being unable to drive, take care of personal hygiene needs, or merely participate in social activities that were important to a victim before an injury.
- Personal record of issues. One of the reasons many personal injury lawyers recommend a client maintain a diary is to track their physical and emotional condition following a car accident. Victims should also record depression, frustration, and feelings of humiliation because of scars or other disfigurements.
- Expert witness testimony. In some cases, an attorney may seek professional assistance in determining pain and suffering. An example of this is a doctor who testifies about the common suffering of TBI victims when they cannot articulate it themselves. A victim of a car accident who suffers burn injuries and the pain of treatment of the burns or experts who testify about someone who has suffered post-traumatic disorders following a car accident may also be helpful.
These are only a few examples a lawyer can use to prove pain and suffering following a car accident. A skilled car accident injury lawyer will explain these issues to a client upon discussing possible settlement amounts with them.
Typical Examples of How Pain and Suffering is Calculated
A victim's attorney will likely take the time to explain the two ways insurance companies typically calculate pain and suffering compensation. These methods are somewhat awkward to explain, but they are the most common.
Per Diem Pain and Suffering Calculations
In effect, this uses a flat dollar amount and is generally calculated based on a person's daily income. The number of days a person is out of work multiplied by this dollar amount is typically the maximum an insurer will use for pain and suffering calculations.
However, this method fails on a couple of counts. First, if the victim of a car accident is a child or someone who is retired, there is no daily earnings capacity. Other methods must be used to calculate the pain and suffering damages for those victims.
Multiplier Method for Pain and Suffering Calculations
The multiplier method is a more complex theory of calculating pain and suffering. First, the overall total damages, which include lost wages, medical bills, and other economic damages, are determined.
Once the economic damages are calculated, a multiplier is used. It is determined by the severity of the victim's injuries. This multiplier is generally assigned a numerical value between one and five. The final pain and suffering damages are then calculated by multiplying the actual economic damages by the multiplier. The higher the multiplier (which generally means the more severe the injury), the higher the pain and suffering compensation will be offered.
Negotiating Pain and Suffering Damages
When someone has suffered an injury in a car accident, they have the right to file a claim against the driver responsible for the accident. In many cases, victims believe they can handle the claim independently. This is not always the best way to handle a claim, and it may also harm the victim further by reducing the amount they may collect for pain and suffering.
It is important to remember that there are personal injury statutes that determine how long a victim has to file a claim. This time limit not only limits the amount of time to file with an insurer but also includes time limits to file a claim in court if negotiations with an insurer do not go well.
Insurance companies are bad when it comes to paying claims. They are also determined to make sure they pay as little as possible for a claim since the amount they pay a victim impacts their earnings for the year, which can upset their shareholders.
Insurance companies are also under no obligation to inform victims of their rights or their options under personal injury statutes. This means a victim can be taken advantage of during the claims process.
Some of the ways this can occur are:
- Insurer makes a lowball offer. The hope is the victim is already facing financial hardship, and by making a fast offer, the victim may accept it just to get their mounting bills paid. This is often a wrong move because once an offer is accepted, the insurance company has no further financial obligation to the victim.
- Victim blaming. Thanks to specific rules which some states have enshrined in their personal injury statutes, an insurer may attempt to shift part of the blame for a car accident to the victim. This can result in a lower-than-expected (or deserved) settlement for a person who has potentially suffered life-altering injuries.
- Misleading victims about legal representation. in some cases, an insurance company will tell a car accident victim that involving a lawyer will slow negotiations, result in the lawyer “taking over” their case, or cost the victim too much. The reality is much different than this.
Every car accident victim should remember that insurance companies are not on their side. Exercise utmost caution when discussing injuries, the accident leading up to the injury, and other aspects of the insurance claim.
Work With a Car Accident Injury Lawyer
Contrary to what an insurer may tell a victim, car accident victims should know these facts about working with a lawyer.
- Slower negotiations. In most cases, negotiations with an insurer go faster when a lawyer is involved. This is because, in conjunction with preparing the settlement demand, a lawyer prepares to take a case to court if negotiations fail.
- Lawyers take over cases. While hiring a lawyer means that a victim can focus on their recovery as the lawyer takes over negotiations, this does not imply that a car accident victim has no say in the matter. In fact, lawyers are ethically required to share any offers from an insurer with the victim, and the victim always has the final say in the case.
- Cost of legal help. When a victim contacts a car accident injury lawyer, they are offered a free initial consultation. This consultation will typically involve a review of the facts of the accident and a discussion about the victim's injuries. There is no obligation to hire an attorney who offers the consultation. Once this is complete, a fee agreement is put into place if a victim decides to hire a lawyer. Typically, this agreement contains what is known as a contingency fee—basically, until a lawyer is successful, the victim pays no legal fees. If the lawyer is unsuccessful in obtaining a settlement, then no legal fees are due.
Whenever someone suffers an injury in a car accident, they must speak with a car accident attorney before filing an insurance claim. Too often, insurers take advantage of victims.
When part of the claim includes pain and suffering, an experienced car accident injury lawyer advocating on behalf of a victim can provide tremendous help.