Have you been injured in a car accident, through no fault of your own? Or maybe you’ve been hurt in another incident that could lead to a personal injury claim? If so, you might be entitled to compensation from the person who caused the injury and/or their insurance company.
Here are a few things you should know:
Personal injury cases can give rise to both economic and non-economic damages.
Economic damages are also known as “special damages.” These are economic losses that can be assigned a dollar amount. That includes property damage, medical bills, and lost wages (i.e., income lost because you were forced to miss work).
Non-economic damages are also called “general damages.” They’re linked to the injured person’s “pain and suffering.” But what does that mean, exactly? And how is pain and suffering calculated?
The phrase “pain and suffering” refers to an injured person’s subjective levels of physical pain, emotional distress, and mental anguish. It can cover the accident itself as well as its consequences, including treatments and medical expenses that result from the injuries.
Pain and suffering can include:
Physical pain and limitations caused by physical injuries, disfigurement, and the resulting treatment. A doctor will likely need to provide a description of these in writing for validation purposes.
Mental anguish, emotional distress, and related conditions arising from physical injuries, disfigurement, and associated medical treatment.
Loss of companionship (also known as “loss of consortium”) from family members and loved ones. This may be due to the injured person’s physical pain, physical injuries, disfigurement, and medical treatments. Or it may be caused by related mental anguish and emotional distress — even that arising from the loss of companionship.
Loss of a career due to any of the factors above that are associated with such losses.
How Do They Calculate Pain and Suffering?
Assigning a dollar amount to pain and suffering can be tricky for two reasons.
First, there’s the “eggshell skull” rule. This means the person at fault must take the injured person “as he comes.” Even if he comes with a delicate, eggshell-thin skull.
Say you were in an auto accident, one of the most common incidents leading to a personal injury case. The person at fault is responsible for the type of injury and the amount of pain they caused the injured person. This is true even if the person at fault thinks those injuries and pain are “objectively” excessive or dramatic.
Second, there’s no single, standardized formula used to calculate pain and suffering under American law. So in any personal injury case, it’s up to the involved parties to decide how to calculate pain and suffering. If the two sides can agree on a method, a settlement offer and out-of-court settlement might be possible. That can be a challenge, though.
One way of calculating pain and suffering is the “per diem method.” Under this method, a dollar amount is assigned for every day the injured person is affected by the injury.
Most insurance companies, however, prefer the multiplier method for calculating pain and suffering over a straight dollar value.
Multiplier Method of Calculating Pain and Suffering
The multiplier method itemizes and tallies the injured person’s special damages, then multiplies the sum by a factor of 1.5. This reflects the accepted notion that your pain and suffering is worth 150% of whatever economic losses you’ve suffered.
However, that’s not always the case. The more severe the injuries, the greater the suffering is likely to be. That means, the higher the insurance company may be willing to set the number.
With the most serious injuries, the multiplier may be a factor of 5, 6, or even 7. This can happen with wrongful death, disfigurement, paralysis, amputation, or severe burns.
In determining a multiplier, an insurance company will consider factors that include:
Medical records and other documentation and testimony on the nature of the injuries
The injured person’s prognosis
The timeline for recovery, if recovery is possible
The nature of treatments required and resulting medical costs
Future and continuing care
The impact on the injured person’s life, quality of life, career, job prospects, relationships, etc.
Whether the injured person’s own actions or omissions contributed to the injuries
Usually, the insurance company will start with the lowest possible multiplier. It will then be up to the injured person, their attorneys, and experts to show that a higher multiplier is appropriate.
Hiring an Attorney to Navigate Pain and Suffering
As you can see, calculating the severity of the injuries and the resulting pain and suffering can be a complex process. In light of this, hiring a personal injury attorney can increase your chances of making a successful claim. The attorney-client relationship can put your mind at ease in several ways:
First, an experienced personal injury lawyer can help you make a risk assessment before deciding to file a personal injury claim.
For example, if the person at fault isn’t covered by insurance, the dollar amount you can collect may be limited. Even if they are covered, what you collect may be limited by the scope, nature, and terms of their insurance policy.
Second, an experienced personal injury lawyer will be familiar with how various insurance companies calculate pain and suffering. This includes the kind of proof they may require.
Finally, a personal injury lawyer knows what to expect from insurance adjusters — and how local courts deal with personal injury cases. This is particularly true of an attorney backed by a reputable law firm.
The good news is, many personal injury law firms and car accident attorneys offer a free consultation. This can help you make an educated decision about your personal injury claim, right from the starting line.
