What Qualifies as Pain and Suffering?
If you have been injured due to someone else’s negligence—whether it be in a car accident, slip-and-fall, or any other personal injury case—you can pursue compensation from the at-fault party for damages, including pain and suffering.
After establishing the liable party, you will then need to prove your financial losses so that you can rightfully claim the money you need to rebuild your life. This money is known as damages. Damages include calculable items like medical bills and non-economic claims like pain and suffering. A personal injury lawyer can help you understand how this works.
Instead of reviewing an online pain and suffering calculator, it is important to take the time to talk to an experienced personal injury attorney. Online pain and suffering calculators are not accurate. They cannot calculate the true amount of damages you can receive without a full understanding of your accident, your injuries, and how those injuries will affect your life and your future. No two injury accidents are ever quite the same. That is why pain and suffering calculations should be done by an experienced attorney after a full and comprehensive evaluation.
Fortunately, many personal injury lawyers offer FREE initial consultations and reviews so they can help you accurately calculate the damages you can receive, including pain and suffering.
What is Pain and Suffering?
Pain and suffering is a legal phrase that describes both the physical and emotional injuries that are suffered by a victim following an accident. Pain and suffering is a category of damages (the amount of money which a plaintiff may be awarded in a lawsuit.) known as–general damages. These general damages are paid by the person who caused the injury due to their negligence or intentional harm.
Physical Pain and Suffering
Physical injuries that occur in an accident that is due to the negligence of someone else can be extremely painful; lasting for days, weeks, months, or years. It can even be permanent, leaving the victim with constant physical pain.
Physical injuries that may qualify for pain and suffering compensation include:
- Back pain
- Neck pain
- Traumatic brain injury
- Nerve damage
- Broken or fractured bones
- Dislocated joints
- Organ damage
Emotional Pain and Suffering
Emotional distress (known as mental anguish under Florida law) is when the allegedly negligent actions of another result in an injury victim sustaining mental harm.
This emotional pain can be severe and can cause lifetime permanent damage to the victim. Emotional pain and suffering can also result in psychological and mental distress.
Emotional pain and suffering can include:
- Post-traumatic stress disorder (PTSD)
- Cognitive changes
- Loss or diminishment of quality of life
It’s understandable that if you have a scar from a surgery or accident that you may not like to discuss the fact that it makes you uncomfortable when strangers stare at it or friends or colleagues ask you what happened.
Most people are uncomfortable talking about their injuries. No one likes to be thought of as a whiner or complainer. I find that even my most severely injured clients are wary to openly discuss the full weight and burden that their injuries take on them.
Victims of injury do not often desire to sit and truly reflect on the extent that their injuries have had on their lives. Even so, little vignettes or stories illustrating how someone’s life was like before and then after an accident is crucial in demonstrating to the jury the magnitude of your loss.
What are Damages for Pain and Suffering?
The losses, both financial and non-financial incurred due to an accident or illness in a civil case are known as damages. Damages can include easily calculable items known as economic damages or special damages, such as medical bills, and non-economic damages, like pain and suffering. When it comes to non-economic damages, the amount of money one can claim is a bit more difficult since there are no receipts or bills.
In most states, when an individual is injured as a result of the negligence exhibited by an individual or corporation, the law provides that the injured party can ask a jury to compensate them for both economic and non-economic damages. Economic damages are readily calculable—medical bills, lost wages, or anything with a set dollar amount. Economic damages are typically easily presentable to a jury. Jurors understand hard and fast numbers, like medical bills and lost wages, and are oftentimes readily willing to compensate an injury victim for these types of losses.
What becomes more difficult to prove and be compensated for are so-called “non-economic” damages, or what is commonly referred to as “pain and suffering” damages. These are also known as general damages.
General damages refer to damages that are not specifically monetary. For example, damages for pain and suffering, loss of consortium, and emotional trauma. There are no tangible bills or receipts that state a specific dollar amount for pain and suffering or emotional damage, but nonetheless, they are still losses for which an injured person deserves compensation.
If a personal injury claim was always as simple as only having special damages, things would be clearer cut. However, a personal injury claim almost never ends at special damages. Oftentimes, an injured person also suffers non-monetary damages that one cannot easily place a price on. This is the problem with pain and suffering claims, and thus the need for a way to calculate a number that is fair for the insurance company and the injured victim and family.
In a personal injury trial, you can ask the jury to compensate you for non-economic damages, which include damages as the result of any bodily injury and any resulting pain and suffering disability or physical impairment, disfigurement, mental anguish, inconvenience or loss of capacity for the enjoyment of life experienced in the past or to be experienced in the future.
These things are the different “elements” of pain and suffering damages. It is basically financial compensation for having to “go through” certain things that you otherwise would not have had to if it wasn’t for the accident/injury.
In minor incidents, it is compensation for the inconvenience; in major cases, it is compensation for the agony and suffering. For example, your medical bills may be covered, but that doesn’t compensate you for the pain of never being able to pick up your grandchild again.
How Much Can I Get for Pain and Suffering?
If the personal injury case does not go to trial, the damages, whether they be economic or non-economic, are generally limited to the coverage limits of the insurance policy.
The two most common types of auto insurance coverage are bodily injury (BI) and uninsured/underinsured (UM) motorist coverage.
Both BI and UM can be used to cover pain and suffering, but only up to the amount of the policy limits. Bodily injury coverage most commonly has two policy limits, or split limits.
One number represents the most the insurer will pay for one claimant, and the other number represents the maximum the insurer will pay in total, regardless of the number of claimants involved. This second number would come into play if there were injured passengers involved. You probably have seen split limits before, they most often look like 50/100 or $50,000/$100,000.
There are exceptions to this rule, however. For example, there may be other insurance policies involved if the injury was caused by a major corporation or some other large entity besides a private citizen.
Often, this means that a person cannot sue an insurance company for a million dollars if the insurance coverage the defendant held only had a limit of $50,000. However, if there are multiple liable parties or if the defendant is a corporation, then you may be able to collect significantly more compensation for your pain and suffering.
If the case were to proceed to trial, it depends on the state whether or not there is a limit. If you were in an accident in a state where you are not a resident, you would need to research how that state values pain and suffering. In many states, there is no limit to the amount that someone receives for pain and suffering.
Proving Pain and Suffering
How Can I Prove Pain and Suffering?
To establish physical or emotional pain and suffering, it is important to document evidence for both your pain and your suffering (there is a difference).
This evidence may include:
- The documented or written opinion of an expert in a specific field related to personal injury that can testify to intricacies of pain and suffering in general
- Medical evidence
- Doctor, therapist, or mental health professional’s notes
- Personal documentation (diaries/journals) of pain
The more evidence that you can provide, the more that the insurance company, judge, or even the jury will be able to see the negative impacts of pain and suffering on the victim’s life in ways that can’t be seen through medical bills.
This part is harder to prove and is what requires the testimony of yourself as well as family and/or friends.
Should your case go to trial it’s important to remember that even things such as the doctor asking you to rate your pain on a scale from one to ten are permanently documented and can be used. This means you should be honest. Do not tell the insurance company you are in immense pain when you’ve been telling the doctor the opposite.
Properly illustrating your pain and suffering damages at trial for the jury to understand is essential in order to be adequately compensated for your injuries.
As stated above, while juries may have a relatively easy time determining the amount of compensation for economic damages because those are numbers that can be seen reflected in medical bills and documented lost wages, they often struggle with placing a monetary value on someone’s pain and suffering because these are admittedly abstract concepts.
Even the standard jury instruction does not provide the jurors with guidance in determining a figure. Abstract concepts, ambiguity, and confusion are all defense tactics utilized by defense attorneys to dismantle your viable personal injury claim.
This is why it becomes critical to open up to your attorney and be honest about the extent of your injuries and the complete impact that your injuries have had on your life.
Pain and Suffering Damage Values
Providing a range dollar figure can also be beneficial in allowing the jury to make the determination as to what the final number will be.
Your attorney can then ask the jury, “what is missing out on an activity you loved to do with your spouse worth weekly? $5? $25? $100?” If that person is 40 years old at the time of the crash and is expected to live another 42 years, the price for that loss over a lifetime ranges from $10,920 to $218,400.
Presenting multiple stories from different witnesses demonstrating the extent of your pain and suffering damages and including a monetary range for each will allow the jury a viable opportunity to compensate you for that loss.
Your attorney can only use these examples of loss to illustrate your injuries if you provide it to him or her. If your case is in litigation you will most likely sit for a deposition (your testimony given under oath before a court reporter who is taking down questions directed to you by the defense attorney and your responses).
In preparing for your deposition, your attorney may ask you to explain how this accident has affected your life. Be ready to give real-life examples so that your attorney can best advocate on your behalf.
Claiming Pain and Suffering Damages
The ways in which an accident has affected you can be very personal in nature. For instance, an injury victim may have been a member of a bowling league with her spouse for twenty years prior to an accident occurring. They bowled together every Thursday evening with their friends and this weekly ritual became a cornerstone of bonding in their marriage.
Following the accident, however, the injury victim suffered neck injuries that prevented her from being able to bowl. She begins to feel isolated from her spouse and her friends. Thursday evenings are now spent utilizing heating pads and taking prescription narcotics in attempts to alleviate the pain.
This example helps to illustrate to a jury that person’s particular loss. It is then useful to attach a monetary value to each Thursday night that the injury victim is no longer doing what she loved to do.
Having Witness Statements is Extremely Beneficial
Proving damages for pain and suffering is one of the more important ways to ensure you receive a fair amount. The more evidence you have, the better. It is also one of the most complex issues that arise in a personal injury case.
Ensuring that you have the necessary documentary evidence—medical records; witness statements to establish the full scope of your pain and suffering, and expert testimony to verify your injuries and the pain they are causing you—are matters that we have years of experience with handling.
Before and after witnesses are those individuals who knew you both before and after the incident giving rise to your injuries and are equipped to testify regarding how the accident has impacted you from their perspective.
A spouse or significant other is typically obvious before and after witness because they live with you day in and out, taking notice of your physical condition. These types of witnesses are inherently biased in that they clearly care about you and would presumably never testify in a manner that would undermine your claim.
The defense will often attack witnesses that are related to you either by blood or marriage by suggesting to the jury just that—the witnesses are inherently biased.
Oftentimes the best before and after witnesses are those people who do not have any personal stake in the litigation. These can be employers or co-workers—individuals who are not a “friend” who may be biased, but rather people who see the injury victim on a nearly everyday basis and can provide first-hand knowledge regarding the effect the injuries have had on the person.
Should I try to handle my pain and suffering claim without an injury attorney?
It is always highly recommended that you hire an experienced attorney before trying to file a personal injury claim. Insurance companies may try to tell you that this is an unnecessary measure and the prospect of paying for an attorney while coping with damages after a personal injury can be daunting. Attempting to handle a personal injury claim on your own almost always ends with a claimant making a mistake that significantly reduces the value of their case and any settlement they potentially could have gotten. Without education and experience handling personal injury claims, it is very easy to make mistakes like accidentally admitting fault, giving recorded statements, handing over medical records when you don’t have to, or failing to file the proper documentation in time.
When someone tries to obtain a settlement without an attorney, the insurance adjuster can usually tell that they aren’t able to negotiate as well. They will then agree to settle for an amount that is far less than what that could have gotten with an attorney, even hundreds of thousands. Insurance adjusters are known to lowball people dealing with severe financial pressure and taking advantage of their situation.
Clients most of the time value their case at a much lower amount than what is actually achievable with a qualified personal injury attorney. This is often because they do not have familiarity with the value of damages they can claim or even that they can seek compensation for certain damages. This is why it is important to have an attorney that can help guide you through the personal injury claim process.
Insurance Calculators and Pain and Suffering
In most cases where the other party was clearly at fault, the injured party will receive at least some compensation for their pain and suffering. Most insurance companies recognize that people who are injured in a car accident deserve something for the way their life has been negatively impacted because of it. However, it is not specifically stated in the settlement exactly how much was allotted for pain and suffering.
Insurance companies will typically use their own pain and suffering calculator. This will help them determine how much they believe your pain and suffering is worth. To do this, they usually multiply your hospital bills by a predetermined number. This one-size-fits-all type of calculating pain and suffering often undervalues the real suffering injured accident victims experience. Your pain and suffering is unique. As such, you need a settlement amount that accurately compensates you for the pain you suffered after your accident.
Working with an injury attorney is one of the best ways to ensure that you receive the amount of money you deserve. Insurance companies work solely to protect their investments and line their shareholder’s pockets. You need a lawyer on your side that is looking out for you. They can protect you from the deceptive tactics used by insurance companies to reduce your claim. This way you can receive the maximum in pain and suffering.
What are some injuries that can get you money for pain and suffering?
There are many injuries where accident victims could receive money for pain and suffering, a few are:
Insurance companies will usually pay more to those with broken bones or those that have needed surgery over those with soft tissue injuries. The longer you have been treating with a doctor, the more likely it is your settlement will be higher.
Your chance of getting more money for pain and suffering is also higher if you were transported to the hospital in an ambulance. That is usually one of the first questions asked by insurance companies when filing a claim.
The 911 call can also be of use to get a higher amount if the case were to go to trial. Jurors would be able to actually listen to the call and hear the worry and how scared the victim was.
Calculating pain and suffering
Negotiating a settlement for a personal injury claim requires that you calculate a reasonable amount of money that you would accept to resolve your claim. Most insurance companies and injury attorneys rely on some type of formula to give them an idea of what a case is worth. Since every personal injury case is unique, pain and suffering calculations are dependent upon the facts and circumstances of each case. In a personal injury case, there are two ways to calculate pain and suffering.
The multiplier method is when the actual damages are multiplied by a number between 1 and 5, depending upon the severity of your injury.
In order to decide what the multiplier is, the insurance company and your attorney will assess the above factors to determine how serious your injuries are. The more severe, the more your number is multiplied by.
(Medical bills, both past, and future) x (multiplier) + (Total of Economic Damages, like medical bills, property damage, lost wages, etc.) = Reasonable Value of Case
Per Diem Method
‘Per diem’ is Latin for “by the day”. As the name implies, this method uses a daily pain and suffering calculator for these kinds of damages.
Using this method, a specific dollar amount is paid for each day from the time of the accident until the patient reaches maximum medical improvement. This is when a medical professional does not expect the victim’s condition to further improve.
It’s not easy to come up with a clear number that accurately accommodates pain and suffering.
How inconvenient or awful one person may consider a life-long back injury is not the same as another person. Likewise, how you determine a dollar amount is even trickier since both pain and how it affects someone is extremely subjective.
Personal and Suffering Calculators Are Nonsense
Insurance companies know better than to use a simple pain and suffering calculator when trying to estimate the settlement amount for a personal injury case. They will often use over 70 different factors to calculate what they believe to be the value of your case. The biggest issue with settlement calculators is their inability to account for important factors that determine the ultimate value of the case. In fact, a settlement calculator will not consider liability (i.e., who was at fault) or whether the injury victim may have been partially comparatively liable. If the victim was even partially at-fault; their damages will be greatly reduced by their percentage of liability per state law.
A Car Accident Settlement Calculator Does Not Consider Causation
Causation is a term of art in the field of personal injury law. It is the analysis of whether the act of negligence caused the very injuries complained of by a plaintiff. Auto insurance giants such as Geico, State Farm, Allstate and Progressive among many others, commonly argue that the car accident victim’s injuries were pre-existing. A calculator cannot account for this argument and how this may diminish the settlement value of the claim depending on how strong their causation defense is.
Do Not Rely On A Settlement Calculator For Pain And Suffering Damages
Personal injury settlement calculators are nothing more than a misleading marketing ploy used by attorney directories and law firms desperate for business. I have seen numerous folks grossly misled and ill-informed as to their damages based on the reliance on a settlement calculator. Keep in mind the very same fact pattern and injuries can be vastly different based on the county wherein the auto accident or motorcycle accident took place.
For example, Broward County might be Florida’s most liberal jurisdiction for jury verdicts and adjusters tend to offer more money on accidents in said County based on the risk of the case potentially being decided by a jury. That same case could be worth 30-40% less based on average jury verdicts in more conservative jurisdictions such as the Panhandle.
You will learn little if anything about personal injury settlement amounts by using one of these calculators. I just saw one of these gimmicks entitled “whiplash settlement calculator.” Ignore them!
Seek an Experienced Personal Injury Attorney
Personal Injury Attorney, Matt Dolman
Hiring a personal injury attorney will greatly increase your ability to viably make a claim for pain and suffering damages. An experienced personal injury attorney will help you to construct an objective testimony of what you can no longer do compared to what you could do before the accident.
At Sibley Dolman Gipe Accident Injury Lawyers, PA, we fully review every detail of your case in order to provide you with the best possible counseling and exceptional representation. We have handled thousands of pain and suffering claims. It is really only a matter of thoroughly documenting all of the above and understanding the ways in which insurance companies think.
Unlike other Florida law firms that handle similar personal injury cases, we focus on the quality of representation, rather than quantity of clients. We do take pride in the number of injured victims with whom we have had the privilege of representing, but we take more pride in their level of satisfaction.
Let us help you maximize the pain and suffering amount of your claim. Call us today for a free consultation with one of our experienced attorneys. We look forward to hearing from you.
*The above information was written and reviewed by either Attorney Matthew Dolman or another injury lawyer at the Sibley Dolman Gipe Accident Injury Lawyers, PA which has a combined 90 plus years of experience practicing Florida personal injury law. Matthew Dolman himself has been practicing personal injury law in Clearwater and St. Petersburg for the last fifteen (15) years. The information provided comes from extensive research and years of experience trying legal cases in courtrooms throughout Florida. SEO and content creation by Jordan Puckett.