If a car accident injured you, you might think you will only receive compensation for medical expenses and lost income. While these losses significantly affect your financial well-being, your pain and suffering may be just as debilitating and have long-term implications for your life.
Car accidents kill thousands of people each year in the United States, injuring 4.4 million more. Car accidents cause all kinds of pain and suffering. Physical injuries range from mild to catastrophic, depending on the size and speed of the vehicles in the accident.
Pain and suffering are difficult to measure. In many car accident cases, pain and suffering account for a large percentage of the awarded compensation. While no amount of financial compensation can undo your pain and suffering, it can help you handle the problems you face.
If an injured person dies in California, their legal claim survives and belongs to the person’s estate. Under the amended version of the California Code of Civil Procedure 377.34, the family can recover compensation for non-economic damages, including pre-death pain and suffering, to the estate.
The law, signed by Gov. Gavin Newsom on October 1, 2021, allows the estate to recover compensation for the victim’s “pain, suffering, and disfigurement” before their death. However, the law applies only to lawsuits filed on or after January 1, 2022.
Examples of pain and suffering include:
- Physical pain
- Emotional distress
- Loss of consortium or society
Types of injuries commonly sustained in a car accident
Car accident injuries range from minor to catastrophic. Often, symptoms of an injury show up hours, days, or weeks after the crash.
Injuries often include:
- Traumatic brain injury (TBI): Traumatic brain injury usually results from a “violent blow or jolt to the head or body” or something penetrating the brain. Traumatic brain injuries resulting from a car crash include concussion, brain damage, skull fractures, and whiplash. TBI is a devastating injury. It may cause long-term effects such as cognitive difficulties, personality changes, loss of motor control, and memory problems.
- Spinal cord injury: A spinal cord injury—damage to the spinal cord, the nerves connected to the spinal canal, or nearby tissues and bones—often causes permanent changes to function and mobility, particularly to parts of the body below the site of the injury.
- Broken bones: In a car accident, bones may break or even shatter. The injury may require surgery and a lengthy recovery period.
Proving pain and suffering
Insurance companies often dispute pain and suffering. For example, an insurance company may use social media posts to show that the victim was still enjoying life, despite claiming that pain and suffering negatively impacted their quality of life. You must convincingly demonstrate intangible losses to receive compensation for pain and suffering. Therefore, seek medical treatment for your car accident injuries to document symptoms, treatment, and the ways your injuries affect your lifestyle and well-being.
Evidence of Pain and Suffering:
- Medical treatment records, including records from counselors and therapists
- Police reports from the accident. These may provide valuable evidence about what happened and why, such as whether the at-fault driver was impaired.
- A log of all medical treatment, pain, and missed activities. Document your pain levels, frustration, humiliation, worry, or depression.
- Photographs and videos. Take pictures of your injuries throughout the recovery period. Videos of you using a wheelchair, walker, or struggles to climb stairs or get in or out of bed.
- Witness statements. These are not limited to those who witnessed the accident. Witnesses may also describe your struggle to go on with your life, such as dealing with childcare, pet care, transportation, housework, meal preparation, and personal hygiene.
- Expert witness testimony. Experts can testify about conditions such as post-traumatic stress disorder, pain, and disfigurement of a burn injury, or how a brain injury affects the victim’s personality.
Damages in a car accident case
Damages refer to the money the victim of an accident receives through settlement or trial. The purpose of compensatory damages is to pay for financial losses or costs directly related to the injury. These include both economic and non-economic damages.
The phrase economic damages refers to the financial costs or losses the plaintiff suffered because of the accident, including:
- Medical treatment
- Prescription medications
- Medical or assistive devices
- Rehabilitation or therapy
- Lost wages or future earnings
- Property repair or replacement
Non-economic damages are more difficult to quantify and can also be quite substantial.
These could include:
- Pain and suffering
- Limb loss or disfigurement
- Loss of enjoyment of life or activities
- Loss of consortium
- Anxiety, grief, or shock
- Emotional distress
If the accident resulted in a fatality, the court might award wrongful death damages to cover funeral and burial expenses, any medical care provided before the death, and more.
In general, the purpose of damages is to make the injured person whole, not to punish the defendant. However, if the defendant’s actions were particularly egregious or careless, the court could choose to punish the defendant by awarding punitive damages. In California, punitive damages, or “exemplary” damages, attempt to make the victim whole. However, the court rarely awards exemplary damages.
Limits on damages in California
In some instances, California law does not permit pain and suffering damage awards to people injured in car accidents.
For example, the injured party cannot recover if they:
- Had a DUI conviction as a result of the accident
- The claimant’s car at the time of the incident, whether owned or not, was either underinsured or uninsured
How much is pain and suffering worth?
To recover damages for pain and suffering, the plaintiff must prove that they suffered harm or will suffer harm from the accident.
Factors determining if a car accident settlement or award can include pain and suffering damages include:
- The amount of the plaintiff’s economic losses
- The severity of the physical injury
- The intent or recklessness of the defendant’s actions
- The strength of the evidence
California doesn’t have a set formula for calculating pain and suffering.
What to do after a car accident
After a car accident, you may be in shock and unsure what to do next.
Start by taking these steps:
Stop and assess the situation. Even if the other driver leaves the accident scene, always stay and report it. Determine whether you or anyone else needs medical attention. If so, call for help immediately.
Make sure you are safe. Car accidents happen so fast and can be disorienting. If possible, move your car to a safe place. If you can’t, protect yourself and others in the accident. Turn on your hazard lights and place warning devices around the vehicle if you can.
Seek medical treatment right away. Some injuries may not be immediately apparent. Tell emergency responders all of your symptoms, even if you think they are unimportant.
Notify law enforcement. California’s law requires you to notify the California Department of Motor Vehicles within ten days of an accident if anyone died, was injured, or the accident resulted in more than $1,000 in damage. Answer questions from the police honestly, but do not guess or make assumptions. If you don’t know the answer, say so.
Collect contact information for any other drivers in the accident. Write down or take pictures of license information, registration information, insurance information, license plate numbers, and phone numbers.
Do not apologize. After an accident, many people may apologize, blame themselves, or admit fault. These statements damage your claim for future legal action. Do not admit any wrongdoing even if you think the accident was your fault.
Do not discuss your injuries with the other driver. Even if you think you were not injured in the car crash or that your injuries are minor, do not discuss or downplay your injuries to the other driver. Until you see a medical professional, you do not know your injuries. Simply say you don’t know and will seek medical attention if necessary.
Keep notes. As soon you are able, write down everything you can think of about the accident, no matter how unimportant it may seem. You may forget details or become confused.
Note such information as:
- The time and date of the accident,
- Location of the accident
- The direction of travel of each vehicle
- Any traffic signs or signals
- Weather conditions
- Other possible road hazards
Take photos and videos. Take pictures of both vehicles and the accident scene. Try to include debris, skid marks, potholes, etc. Also, include any traffic control signs or signals. However, avoid posting pictures or comments about your accident on social media.
Gather contact information for anyone who witnessed the accident.
Contact your insurance company.
How can an attorney help?
If a California car crash injured you, you have a two-year statute of limitations to file a lawsuit. An experienced California car accident attorney can protect your rights and recover the compensation you deserve.