One of the challenges of filing a negligence-based personal injury lawsuit is proving a case’s elements. Initially, there must be sufficient proof that someone owed someone a duty of care, that they breached that duty of care, and that the breach caused the victim physical or financial harm.
The second challenge is seeking compensation for your pain and suffering, which are non-economic losses. Whenever someone suffers an injury, they face some degree of pain. Before including pain and suffering in a personal injury claim, there must be a demonstrable way to show how the pain and suffering calculation was determined.
Documentation Showing Pain and Suffering
Initially, an accident victim may believe there is no way to document their pain and suffering.
However, here are some of the documents which can help a victim establish their pain:
- Medical reports – One of the first steps you should take following an accident is to seek medical attention. A doctor will create a record of the injuries you sustained. Over time, you may need to see several different medical specialists for various injuries and recovery. Always make sure you are honest when asked about your pain level.
- Medication records – When a physician recommends an over-the-counter or prescription pain medication, follow the recommendations and save the receipts for purchases. A record of how frequently you have to treat your pain can help prove your pain and suffering claim.
- Personal journal – One recommendation that many personal injury attorneys make to clients is to keep a progress journal. Document in your own words the level of pain you are suffering daily to help create the basis for the pain and suffering losses claimed.
These are just a few of the hard documents that can aid your attorney in establishing a monetary amount for pain and suffering.
Expert Testimony Regarding Pain and Suffering
There are instances when an accident injury attorney can help clients by seeking experts in their field to testify to the level of pain and suffering a patient in a similar situation would suffer. It is important to remember that most expert witnesses have one specialty, so it may be necessary to provide several different experts.
Some of these may include:
- Medical Experts – The range of medical experts will vary depending on the type of injuries a victim has suffered. For example, if you suffer broken bones, California car accident lawyers may contact an orthopedic doctor to help establish the treatment and associated pain.
- Mental Health Professionals – While not every accident victim will suffer post-traumatic stress disorder (PTSD), it is common when the victim is emotionally devastated because of the accident, injuries, or long-term effects of their injuries. A mental health professional can help establish a person’s trauma level to help bolster your claim of pain and suffering.
These are some options a victim can pursue to display their suffering from injuries following an accident.
How Personal Testimony Can Establish Pain and Suffering
Unless someone has faced the same injury as you, in the same circumstances, no one else knows the impact of an injury.
However, the people you surround yourself with can help your attorney establish your level of pain and suffering following an injury.
Here are some of the potential people in your life who can help your legal team:
- Former Coworkers – Victims of serious injuries, such as those sustained in a pedestrian accident in California, can have a devastating impact on your ability to do the same work you did before the accident. Your coworkers can discuss your prior abilities in the workplace and the role you played as part of your work team. This testimony can be particularly powerful in cases where you cannot work due to your injury permanently.
- Family Members – An effective method of showing the devastation of a spinal cord injury, or other injuries, can be demonstrated by family members. A California personal injury attorney may ask your family members to discuss your overall health and participation in family activities before your injury versus your ability to participate after your injury.
- Close Friends and Neighbors – Someone who has suffered an injury may withdraw because they no longer feel connected to their friends. In other cases, an injury may be preventing you from actively doing things you previously enjoyed. Friends and neighbors may be able to provide your attorney with testimony about your activities before and after your injury.
As you can see, there are several ways to help establish your pain and suffering claim. When you meet with your lawyer, they can help you determine which forms of evidence are most applicable to your claim.
Insurance companies are often reluctant to pay a claim where pain and suffering make up the largest portion of a settlement demand. However, when your attorney can establish the basis for the claim, the chances are increased the insurer will pay attention.
Regardless of the injury suffered, victims of all types of accidents need time to deal with their physical recovery. Your primary focus should always be regaining your pre-accident physical condition whenever possible. This pursuit is one of the primary reasons you should consider getting an accident injury attorney involved in your claim as soon as possible after your accident.
Various Methods of Calculating Pain and Suffering Damages
One common question victims ask personal injury attorneys is the overall value of the claim they may be able to file. A car accident victim may wonder how much they can recover from the pain and suffering from a car accident. The answer depends on several factors. What is important to understand is how insurance companies and legal teams establish monetary values. The calculations are seldom the same. Here are some of the common ways these damages are determined.
Software Method of Calculating Pain and Suffering
Many insurers use a computer program called Colossus to help them assess the pain and suffering they may be willing to pay to an accident victim. This computer program generates an amount of money based on the input from the insurance adjuster.
The information the adjuster uses may include:
- The type of injury suffered by the claimant
- Whether the injury required hospitalization
- What treatment the claimant receives for the injury
- How long the treatment for the injury lasted
This software does not include any direct information regarding the claimant. For example, if you have never had dizzy spells previously, but since the accident, you have suffered issues with dizziness, this is not considered. The algorithm may also reduce calculations based on the type of doctor you see. For example, the program may reduce pain and suffering if you saw a chiropractor rather than an orthopedic physician.
Per Diem Method of Calculating Pain and Suffering
Calculating a per diem pain and suffering award involves associating a specific daily dollar amount. The date of the injury is the date from which the insurer calculates the award. The final day of the award is the day you reach maximum recovery, when doctors don’t expect your condition to change or improve regardless of future treatments.
Some believe this method of calculating an award is less subjective. However, that depends largely on the daily calculation’s dollar amount.
Multiplier Method of Calculating Pain and Suffering
Using this calculation method, the insurer adds the total damages you have suffered. They include medical expenses, expenses for all treatment, lost wages, and other calculable losses you have suffered because of your injury.
Once all the losses are totaled, the insurer assigns a number called a multiplier to your damages and multiplies it by your economic damages. More serious injuries get higher multipliers.
As you can see, the total losses calculated are all subjective in some manner. Computer calculations will not likely consider the human factors associated with your pain and suffering. The per diem method likely ignores the long-term consequences of your injury.
Discuss all options with your lawyer to determine what amount to include for pain and suffering in an accident injury claim. They have the knowledge and experience necessary to understand what they should include and what amount the insurance company will find acceptable for pain and suffering. If your case goes to court, your attorney can effectively demonstrate how they arrived at the pain and suffering amounts and why they accurately reflect your specific injuries and damages.
Working With a Lawyer Who Understands Pain and Suffering Damages
Insurance companies will fight tooth and nail to prevent you from receiving the full damages you may have the right to collect. One of the claim areas they will contest most is pain and suffering. Insurers often go to great lengths to minimize the extent of your injury, including seeking information about your prior physical health.
Make sure an attorney reviews any documents the insurer requests you sign. Medical releases often are not limited to the records which pertain to your injury and may provide your complete medical records. The insurer may use this medical history against your claim.
Here’s an example of how they can utilize your information:
- Scenario: You have a slip and fall accident in an office building. You rupture a disc in your back as a result. You did everything you should have done: carefully documented the injury, sought medical care, reported the accident, followed the doctor’s advice, and you still suffer serious pain.
- Insurance Claim: You file your injury claim. Before you file the claim, you do not contact an attorney because the building’s owner has informed you they have looked at the claim and intend to submit it to their insurer.
- Insurance Adjuster Discussions: An insurance adjuster reached out to you within a few days, telling you they would send you several forms to fill out and sign. You receive the forms, review, sign, and return them.
- Insurer Denies Your Claim: You receive a denial letter from the insurance company. The denial references your accident and the injury you reported but also an injury you sustained years prior. The letter states that since your injury was merely an “aggravation” of an old injury, their client is not responsible for it or your pain and suffering.
Your only option is to file an appeal, which has a firm deadline. While an attorney can assist you in filing that appeal, had you hired a personal injury lawyer first, you would have discussed your prior injury, and they could have ensured the insurer did not use it against you.
If you or someone you love suffered an injury because of someone’s negligent or deliberate act, you should immediately contact a California personal injury attorney for a free case evaluation.
Personal injury claims are challenging and tricky, and without the proper experience and knowledge, difficult to ensure recovering your full damages. Contact a well-versed personal injury lawyer who will guide you through the claim process and hold the defendant and insurance company liable for the compensation you deserve.