How Do Lawyers Calculate Pain and Suffering?
There are many parts of your personal injury damages, and you legally deserve to receive every dollar when you can prove that someone is at fault for your injuries. Some aspects of your injuries are easier to quantify than others.
One of the less understood parts of your personal injury damages is pain and suffering. Many people need to learn the broad range of impacts you can include in this category, and they need to understand how to value them in a settlement.
One party that knows full well what these damages are worth is the insurance company. However, insurers are also skilled at minimizing settlements, including underestimating the value of your pain and suffering.
Therefore, you should hire someone who knows the real value of pain and suffering damages, which is a personal injury attorney
. An attorney can tell your story and prove how much you deserve for the extensive pain and suffering you experienced from your injuries.
The Broad Reach of Personal Injury Damages
You do not need to suffer an actual economic injury to be entitled to financial compensation after an accident
Damages can happen to:
- Your person
- Your finances
- Your property
- Your physical and emotional well-being
Pain and Suffering Is Harm to Your Quality of Life
Pain and suffering are related to the latter category. Your accident injuries will affect you long after the accident itself and can remain with you for the rest of your life. You may even be physically recovered but still be dealing with the mental effects of your injury. For example, you can live with trauma or have given up a particular activity you enjoy because of fear. You can suffer permanent disfigurement that causes you embarrassment.
What Does Pain and Suffering Include?
By definition, pain and suffering cover the physical pain you endure from your injuries. The category of pain and suffering covers many things beyond physical discomfort.
For instance, you may suffer from:
- Loss of enjoyment of life
Many accident impacts are compensable. Practically any damage to your quality of life in the wake of an accident can be a reason for the responsible party to pay you. They have the legal obligation to restore you to the position you were in right before the accident.
Pain and Suffering Should Account for Your Own Unique Situation
The issue with pain and suffering is that it aims to quantify the unique effects on your life. In reality, the insurance company does not want to know about you. They want to make your case go away quickly and spend the least money. They do not want to dig into how the accident has affected you because it may cost them more money. If they understand how the accident impacted you, it may mean a higher settlement check.
Accordingly, the insurance company tries to take something inherently subjective by nature and place an “objective” value on it. Instead of reviewing the facts of your situation, the insurance company will usually use one of two objective methods to calculate your pain and suffering. While they claim that they are trying to be objective, they are trying to be subjective in their favor.
The Multiplier Method of Valuing Pain and Suffering
The first method that the insurance company will use is the multiplier method
. They usually opt for this calculation when you have suffered a long-term injury. The insurance company will select a factor that they will apply to your medical costs and other economic damages to reach the amount of pain and suffering. Your medical costs represent all the expenses necessary to treat your injury, including medical bills, prescriptions, and rehabilitation.
In the multiplier method, the actual number used depends on the severity of your injury. For example, if you suffered a spinal cord injury or a traumatic brain injury
, you may use a larger multiplier. The multiplier may decrease if you have suffered a head or neck injury from whiplash.
How the Insurance Company May Use the Multiplier Method Against You
While the use of the multiplier method is common, there are numerous issues with it from your perspective. The multiplier may not accurately capture your own experience and losses from your injury. Pain and suffering account for the difference between what your life was like and now.
You may have been very active before the accident, enjoying physical activity and travel that you can no longer enjoy. However, the multiplier method does not seek to learn about what you specifically lost. You may have a predisposition towards mental health issues aggravated by the accident that this method does not capture.
The Per Diem Method of Calculating Pain and Suffering
The other method of calculating pain and suffering is the per diem method
. This calculation gets used for more short-term injuries with a set duration. For example, you may recover after a few months from a broken leg or arm you suffered in an accident. You may suffer pain and discomfort from this only for a finite amount of time.
Per diem is a Latin term that translates to “per day.” The theory behind the per diem method of calculation is that you are entitled to payment for every day you had to live with the effects of the accident, from when the injury happened until you are defined as recovered.
For example, the insurance company can look at the severity of your injury and determine that you deserve $250 for each day you lived with a broken leg. If they deem the extent of your injury to be 90 days, you will be entitled to $22,500 ($250 x 90) in pain and suffering damages. However, the insurance company will rarely use the per diem method. They may select whatever valuation method puts the least amount of money in your pocket.
With the per diem method, you can count on the insurance company underestimating both the severity of your injury and how long it will take you to recover. Their financial incentive is to pay you as little as possible. Often, their settlement offer is a mere fraction of what you will legally be due. The problem is that it may be challenging to establish what you are legally entitled to due to the subjective nature of pain and suffering.
You Can Get Past and Future Pain and Suffering
Your damages do not just cover the period between the injury and the settlement. You are legally entitled to damages for the rest of your life if you will permanently live with the aftereffects of the injury. The challenge is that you will need to look into the future and prove what you may experience. As the plaintiff or claimant, you have the burden of proof to show your damages.
An attorney will work with medical and other experts to understand your new life because of your injuries. Not only will they review your medical records with your doctor, but they may also consult with psychiatric experts to quantify your emotional distress and depression as the result of the accident. Remember that you must establish precisely how you have suffered harm; it is even more complicated when claiming a subjective injury.
You Need to Tell Your Side of the Story
Getting the proper amount for your pain and suffering is a matter of telling your own story and showing how you have been affected by the injuries. The insurance company will only want to listen to you if they prefer to rely on their own numbers and calculations. Your medical records will tell part of the story, but you also need to describe your own experience to a company that does not want to hear it. Hiring an experienced attorney is one way to get through and be heard.
How to Bolster Your Own Case for Pain and Suffering Damages
You are always better off when you come armed with proof and documentation of your damages. Even if the insurance company does not want to listen, a jury may if your case goes to trial.
Here is what you can do to document your pain and suffering damages:
- Keep a journal of your daily experience since the accident, documenting your experience and pain when you feel it
- Save your medical bills and records to show proof that a physician has treated you
- Get affidavits from friends and family that describe your condition and experience since the accident.
Get Medical Treatment and Follow the Doctor’s Recommendations
In addition, you should do everything in your power to get medical and psychological treatment. Even if you have never been to a therapist, you must take all possible steps to mitigate your damages. You cannot simply claim depression and anxiety without doing anything about it. The insurance company will carefully review your records to see whether you have obtained and continued with your treatment. If the answer is no, they may try to reduce your pain and suffering damages.
You Do Not Have to Take Any Offers
You do not have to accept the insurance company’s estimate of your pain and suffering damages. Take everything from the insurance company with a grain of salt, considering their own financial self-interest in a lower settlement. If you and your lawyer believe that you deserve more, you should hold out and fight for it. When you have documentation that effectively tells your story, you are in a stronger legal position to get the money you deserve.
If you receive the settlement offer by insurance company
, it will likely be for far less than the value of your case. One of the main areas where they will aim at you is in the pain and suffering damages. Even though there is room to underestimate your economic damages, the insurance company will spare no effort to reduce your non-economic damages, including pain and suffering. You should count on an initial settlement offer that is just a fraction of the true worth of your case.
Your Lawyer Knows How to Handle an Unreasonably Low Settlement Offer
At this point, your lawyer will likely advise you to reject the settlement offer.
You have two options at this point:
- Continue to negotiate with the insurance company, rejecting their settlement offer and countering with a demand of your own for what you are due.
- File a lawsuit in court, which will begin the process of taking your case to a jury (filing a lawsuit does not automatically mean that your case goes to trial because many lawsuits settle before they reach a jury).
The Insurance Company Does Not Have Unlimited Power to Force a Settlement
You do not have to take something just because the insurance company offers it. They do not have the roles of judge and jury in your case. They stand for their policyholder, as they are legally obligated to defend customers after an accident. The insurance company is trying to make your matter go away for as little as possible.
However, your legal rights to total compensation for things like pain and suffering last until you sign a settlement agreement or a jury makes an award. The case can last as long as you need it to to get full compensation, right up until the time that the statute of limitations
expires. Your attorney will give you the legal advice that you need to present the strongest possible case.
Allow a Personal Injury Lawyer to Protect Your Rights
While accident victims have important legal rights, enforcing these rights is never simple. You should focus on your physical condition and treatment and allow a personal injury attorney to do the legal heavy lifting.
An personal injury attorney
knows how much you deserve and knows how insurance companies work. Seek a no-cost case evaluation from a law firm in your area today. It will bring you peace of mind.