How to Calculate Pain and Suffering
When you file a lawsuit after an accident, your personal injury lawyer will file a claim for damages, both economic and non-economic. Economic damages are fairly straightforward and include your medical bills, time lost from work, and property damage.
However, after a car collision, workplace accident, or medical malpractice, you’re likely to experience pain and suffering or may even have life-altering consequences from the accident. You wouldn’t be in that pain, suffering from a temporary disability, or unable to enjoy your favorite hobbies if it weren’t for the accident that caused your injuries.
Therefore, the U.S. civil court system allows plaintiffs (the accident victims) to file for non-economic damages, or compensation for pain and suffering, and the actual losses from the accident.
Although no amount of money can return you to how you were before the accident or fully alleviate your pain and suffering, it can help you better care for your family and yourself while you recover from the incident.
Now that you know what constitutes pain and suffering, you may wonder how a lawyer or a judge arrives at a dollar amount for these damages. This question is one of the most common personal injury clients ask.
Although every case and circumstance is different, many factors determine the amount of non-economic damages you could receive. Keep reading for an overview of the basics of pain and suffering claims.
How Do Personal Injury Lawyers Calculate Settlement Amounts for Pain and Suffering?
Your personal injury attorney is your advocate against the party that caused your accident and their insurance company. Often, the person or entity’s insurance company (like a personal auto insurance company or medical malpractice insurance) pays for the settlement, not the individual or company themselves.
Your lawyer will negotiate with the insurance company representatives, who will typically try to settle the lawsuit for as little as possible. Usually, your lawyer will list the maximum amount they can on your initial lawsuit and may negotiate down to compromise with the insurance company while still achieving a fair settlement to cover your losses.
What Is the Difference Between Economic and Non-Economic Damages?
When calculating your settlement amount, the economic portion is fairly straightforward.
Your personal injury lawyer will add up:
- All of your medical bills
- The wages you lost because of the accident and medical treatments
- The estimate of future medical treatment, like surgery or physical therapy
- Personal property losses, like car repairs or replacement
- The value of domestic services, such as for a stay-at-home-parent
- The loss of employment or business opportunities because of your injuries
Essentially, they will include any verifiable monetary loss in the economic portion of the settlement.
The non-economic portion of your settlement can include:
- Pain and suffering
- Emotional trauma (PTSD, adjustment disorders, etc.)
- Mental anguish
- Loss of society and companionship
- Loss of enjoyment of life
- Loss of consortium
In some cases, the injuries a person experiences from the accident are life-altering to the point where they may not be the spouse, parent, or loved one their family knows. They may need permanent caregiver services or even accommodations in a long-term care facility.
Non-economic damages compensate both the victim and their family, who lost a husband or wife, mom or dad, or provider.
How Will My Personal Injury Attorney Put a Dollar Amount on My Non-Economic Damages?
Insurance companies may use a multiplier method, where they determine the amount of non-economic damages based on the dollar amount of the economic damages. They calculate the economic losses and multiply them by a number to arrive at the non-economic damages they’re willing to pay you.
The multiplier depends on the severity of your injuries and their impact on your life.
Another method of calculating non-economic damages is using the per diem method. In this case, your personal injury lawyer will assign a dollar amount for every day after the accident that you experienced pain and suffering to arrive at a final dollar amount.
How Do Insurance Companies Calculate Pain and Suffering?
Using the multiplier method, your lawyer will typically use the highest multiplier possible.
Insurance companies, on the other hand, will not. It’s in their best interests to pay as little as possible in a personal injury case. Remember, they’re in the business of making money, not paying out money, which is why it’s so important to have an experienced personal injury lawyer negotiating for you.
An insurance adjuster has no obligation to consider either the multiplier method or the per diem method when calculating any pain and suffering settlement they will offer.
Some may use a computer algorithm to determine how much, if any, money they should pay for pain and suffering. These programs are often proprietary, unique to each insurance company, but likely based on the economic damages assigned to each kind of personal injury case the insurance carrier covers.
Some programs may also consider what kind of medical treatment you sought. For example, post-traumatic stress disorder (PTSD) is common for many victims of catastrophic accidents. You may see a therapist or counselor to help you achieve a normal life.
Perhaps your accident triggered an onset of anxiety or depression, and you visited a psychiatrist. The insurance company may note that you had actual medical care for pain, suffering, and emotional trauma and consider that when offering non-economic compensation.
Suppose your injuries require ongoing medical care, like physical or occupational therapy or regular visits to the chiropractor. In that case, the insurance company may determine that your injuries were severe and painful, and therefore, compensable.
How Do Insurance Companies Determine Settlement Amounts?
Personal injury cases aren’t always determined in a court of law but rather by alternative dispute resolution methods, such as mediation. Your lawyer may negotiate with the other party to determine a settlement amount.
The insurance company typically accounts for several things before offering a settlement or sending your personal injury attorney a counteroffer to your claim.
These factors include:
- The type of claim, such as auto insurance, worker’s comp, or homeowners insurance
- The limits of the other party’s policy—you may only get the amount the other party was insured for
- The nature of your injuries, extent, and severity
- Any long-term effects on your life, like disfigurement or disability
- How strong the facts of your case are
- Who shared what percentage of the fault for the accident
Other factors may also come into play, depending on the state where you filed your claim or what plaintiffs in similar cases obtained from jury verdicts.
If juries awarded a high amount for pain and suffering consistently, for example, the insurance company may offer more to save themselves the expense of a trial where they would likely pay trial expenses plus the pain and suffering amount your lawyer demanded.
When you have a legal representative who also knows the value of your case before a jury, you may be in a stronger position when negotiating a settlement.
How Much Is My Pain and Suffering Worth?
The chronic pain you’re in, the change in your abilities or independence because of your injuries, or the nightmares and anxiety after the accident cannot be made whole simply with a check.
However, you deserve compensation for your injuries, and the settlement you receive can help make your life easier and alleviate financial worries for you and your family.
When determining the monetary worth of your pain and suffering, your lawyer will consider a few factors, including what type of distress you’re experiencing.
Physical Pain and Suffering
Physical pain is easy to identify: Your body hurts. You may hurt from your injuries healing or just the general discomfort they caused. If you undergo physical therapy, then you might have aches after treatment.
Neck, back, and spine injuries may result in pinched nerves or herniated discs that cause chronic pain or pain when you move in a particular way.
Physical pain may fade as you heal, or it could last a long time. You may require surgery to treat pain, such as back surgery for a herniated disc, which can cause even more discomfort.
Accidents don’t just hurt the body. Many victims of catastrophic accidents incur significant mental anguish. For example, you may have been in a car collision where another passenger was gravely injured or died, or you may have felt fear after an incident like a dog attack and bite.
Emotional distress is very real, and mental pain like anxiety can be just as detrimental as physical pain to a person’s health and life.
Mental distress may be chronic, too, such as an onset of fear of animals or PTSD. Healing mentally can take just as long as healing physically.
Calculating Emotional Trauma
You may include any negative emotion and response attributed to the accident when calculating your emotional trauma.
Some victims may develop situational depression, which can affect daily life and take months to recover from. Others might have a chronic adjustment disorder, in which they cannot fully process the accident and enjoy a normal life.
Difficulty eating and sleeping are common after accidents, and some people may even have resentment or irritability, which affects work, school, and relationships.
Each case is different, however, and your lawyer will account for your circumstances. Some people may benefit from writing about how the accident affects their lives in a daily journal. Your attorney may use this in building your case.
Loss of Enjoyment of Life
Sometimes, the impairment from an accident is so severe that it results in a victim’s overall loss of enjoyment of life. Their medical condition—physical, mental, or both—affects every area of their life to the point where they cannot work, give up beloved hobbies, or even experience sexual dysfunction.
Proving Pain and Suffering
Proving to the other party’s insurance company or a judge that you did experience significant, compensable pain and suffering is part of the case your lawyer will build. They may ask people in your life, including family members or co-workers, to testify to your state before and after the accident.
Suppose you see a therapist or counselor to process the trauma and grief from the accident. In that case, those records may be called into evidence as medical records, along with the doctor’s reports and records of your injuries.
Your lawyer may also call expert witnesses to testify about your mental state post-accident. This could include your treating psychiatrist or counselor, who would confirm their diagnosis of a mental health condition attributed to the accident.
If your accident resulted in a disability or disfigurement, your lawyer may claim that the injuries made it impossible for you to enjoy the same quality of life.
Finally, you may need to testify in mediation or court about how the accident affected your life. For example, if your pain and suffering make it impossible for you to engage in activities you once enjoyed, you may pursue compensation
for that loss.
A journal of how your life has changed since the incident can help build your case for emotional trauma compensation.
A Personal Injury Attorney Can Help You to Fight for Pain and Suffering Damages
If you’ve been in a car crash, hurt at work, slipped and fallen at the local grocery store, or bitten by the neighbor’s dog, you may have a strong personal injury lawsuit. A qualified personal injury attorney can determine whether you can pursue compensation.