How is Pain and Suffering Determined in a Personal Injury Case?
When determining loss in a personal injury case, it’s a relatively simple matter to calculate actual financial losses due to an accident, such as medical bills and lost wages. We refer to these as “special damages” because they can be easily ascertained and calculated. However, determining the dollar value for “pain and suffering” (i.e., “general damages”) can be a trickier affair. How does anyone decide what a person’s pain and suffering is worth in dollars and cents? Even more importantly, how does one convince an insurance company or judge that the injured party’s pain and suffering is worth that dollar amount? Believe it or not, pain and suffering damages are not determined randomly; attorneys and insurance companies do apply a set of logical standards to help assign reasonable dollar amounts to these damages. The following quick primer should give you a clearer understanding in how pain and suffering are determined in a personal injury case.
Defining “pain and suffering”Before considering how to assign a dollar value to this abstract term, let’s look at what “pain and suffering” means in the eyes of the law. Generally speaking, “pain and suffering” encompasses virtually all of the physical and mental aspects of distress surrounding a personal injury beyond the actual cost of medical treatment. It refers to the actual pain of the injury itself, plus the less tangible emotional and mental difficulties that often accompany such an injury, such as worry, grief, fear, stress, depression, lack of sleep, and an overall lessening of the quality of life. (You can perhaps see immediately why it’s so difficult to describe these intangibles as a monetary amount.) The amount of pain and suffering may vary greatly according to the severity of the injury and the condition of the injured party prior to the injury; even two people experiencing the same type of injury may experience different amounts of pain and suffering. For example, a healthy person who experiences scrapes and cuts in an accident will have almost no pain and suffering, while a diabetic experiencing the same accident could face serious complications and hospitalization. This is why each case must be assessed according to the individual circumstances in order to estimate a reasonable amount for pain and suffering.
There are two categories of pain and sufferingAnother factor to consider when determining a dollar amount for pain and suffering is whether the after-effects are temporary or ongoing. We categorize this in two ways:
Current pain and sufferingThis term refers to an injury with an identifiable endpoint. If the injured party makes a full recovery and heads back to work – or is expected to do so imminently – the pain and suffering will end at some point, and calculations will be made accordingly.
Current and future pain and sufferingThis term refers to injuries with ongoing consequences and impact for the foreseeable future. If your injury permanently debilitates you and prevents you from working, or causes some other form of ongoing trauma to you or your family, this factor will be weighed into the value.
Calculating pain and suffering valuesInsurance companies and the court system currently recognize two methods of determining a dollar amount for pain and suffering, both of which are successively argued in negotiations. The method used depends largely on the circumstances surrounding the injury, as well as what the attorney thinks can be most successfully argued as “reasonable.” Let’s look at both of these now.
The “multiplier method.”The most common method in use, the multiplier method, begins by determining the dollar value of “special damages” – that is, the actual cost of treatment, lost wages, etc. – and then applying a multiplier to that amount to determine the amount for pain and suffering. The multiplier usually ranges between 1 and 5, based on the severity of the patient’s situation. Factors that may justify increasing the multiplier may include:
- Excessive injury
- Prolonged recovery (backed by documentation)
- Evidence of ongoing repercussions, as confirmed by physicians
- Sustained emotional/mental distress (e.g., documented depression, loss of interaction with family backed by journals, etc.)