Damages for pain and suffering are an important aspect of personal injury cases. It’s important to know what they are and how they work.
The Basics of Pain and Suffering
“Damages” is the legal term for the compensation (money) you receive if you are successful in a civil lawsuit. They can be divided into two categories: compensatory damages, which cover the losses you have suffered, and punitive damages, which serve to punish the responsible party.
Compensatory damages can further be divided into two sub-categories: economic damages and non-economic damages.
Economic damages cover direct financial losses, such as medical bills, lost wages, and property damage. With each of these, a precise monetary amount may be placed on the amount the plaintiff lost.
Non-economic damages, on the other hand, cover losses that are more difficult to quantify. The term “pain and suffering” refers to one of the primary types of non-economic damages.
Anyone who has been injured knows that pain and suffering is very real, and greater than merely the sum of economic losses. Pain and suffering can refer to physical suffering — actual bodily discomfort — or mental pain and suffering — fear, anger, anxiety, depression, sleep issues, or post-traumatic stress disorder. While some damages for mental pain and suffering are economic, such as bills for psychotherapy or medication, claims for emotional pain are also entirely legitimate, and you may recover non-economic damages for them as well.
But, how do you place a dollar amount on something so intangible?
How Pain and Suffering Are Calculated
One method is based on an individual’s economic losses. In this method, you multiply the economic losses by a certain number, known as a multiplier. The precise multiplier will depend on a variety of factors, but typically, the multiplier is somewhere between 1.5 and 4; that is, between 150% and 400% of the damages you would have received without the multiplier. So, if your economic damages were originally $10,000, you would receive between $15,000 and $40,000.
Another method is known as the per diem method. In this method, a person is awarded a certain dollar amount based on every day of pain they suffered because of the accident injuries. This amount can also vary, but is sometimes calculated based on a person’s earnings.
Attorneys may use either method when calculating the pain and suffering damages they will request for you, or may use some combination of the two.
Factors That Influence Pain and Suffering Damages
The first is the severity and length of the injury. If an injury is more critical and takes longer to heal, this will increase your pain and suffering damages. If an injury is permanent, you can expect significantly increased damages. The same goes if you will need extensive care after the case has been settled.
Another factor is the severity of the pain, which is not always correlated to the severity of the injury. Some relatively mild injuries cause severe pain, while more serious injuries may cause less pain. If you had a particularly painful injury, this may lead to an increase in pain and suffering damages, regardless of the other effects of the injury. Pain, of course, is subjective, but the system will approximate, based on how much pain others typically feel with similar injuries.
A third factor is the impact of the injury on your quality of life. This factor varies most. Everyone has a different lifestyle, and the same injury could impact different individuals in vastly different ways. An individual had a more active lifestyle before the injury could gain more in non-economic damages than a less active individual, because the injury will affect them more. Factors like personal relationships, day-to-day activities, and career opportunities will all be relevant.
Finally, damages might be influenced by the determination of fault. If the other side was totally at fault, you may recover a relatively large amount in pain and suffering. If you shared fault, your damages may be reduced by comparative negligence (as is the case with all types of damages).
How to Collect Evidence of Pain and Suffering
Collecting evidence of non-economic damages such as pain and suffering is a different process from collecting evidence of economic damages. As with physical injuries, save all your medical bills, and keep a strict record of all costs associated with the injury, such as therapy, prescriptions, etc.
Keep a day-to-day journal of all the non-economic ways in which your injury has impacted your life, such as mental anguish, loss of sleep, and the inability to do certain things that impact your quality of life. Even something as simple as being unable to hug your child can be important information. As with medical records, the more thoroughly this is recorded, the better.
When Pain and Suffering Can Be Recovered
Damages for pain and suffering, and non-economic damages in general, can be controversial. Because they are somewhat subjective and harder to calculate than strictly economic damages, they are subject to the discretion of the judges and juries involved. As a result, there are a few high-profile cases in which individuals received very large awards for pain and suffering. As we discuss in a separate article, many of these cases, such as the infamous McDonald’s “hot coffee” lawsuit, were entirely legitimate.
Still, because some media coverage depicted those suits as crazy and unfounded, that erroneous perception remains. Because of this, some states have passed tort reform laws. Tort reform can take a variety of different forms, but the most common is an arbitrary cap on non-economic damages recoverable in a lawsuit, such as $250,000. These laws vary from state to state.
There may be other restrictions on non-economic damages in specific cases. For instance, in California, you cannot recover pain and suffering damages for an accident in which you were convicted for driving under the influence of alcohol or drugs, even if you were not at fault. Likewise, you will not be able to receive pain and suffering damages if you were driving uninsured. The laws on these precise exemptions, also, will vary from state to state.
One final note: it is also important to remember that in an accident, you will typically only be able to recover damages up to the policy limits of the responsible party, no matter your injuries. If those policy limits do not cover your needs, you will have to sue the other party directly. This may work up to a point, but once the person’s assets are exhausted, they will become “judgment proof” and you will be unable to recover more.
The Bottom Line On Pain and Suffering
Damages for pain and suffering are an integral part of any personal injury case, and you have every right to collect them. Just because your loss is easily quantifiable does not make it any less valid.
The right personal injury attorney will help you can recover the appropriate damages for pain and suffering. If you have been injured in an accident, contact one of our experienced personal injury attorneys today and schedule a free consultation.
A highly regarded and well-respected trial lawyer, author and speaker, Reza Torkzadeh is the founder and managing attorney of TorkLaw – a premier plaintiff’s personal injury law firm specializing in complex catastrophic injury and wrongful death cases.
Reza’s performance in and out of the courtroom has earned him several of the industry’s top awards and professional recognitions, and a reputation as an elite litigator. He has earned millions in settlements, verdicts, and judgments for his clients.
If you would like a free consultation, please contact us today.