If you were hurt badly in an accident, you may be entitled to compensation for pain and suffering, as well as emotional distress. These damages are types of general damages, which are designed to compensate you for:
- Actual physical pain and discomfort, whether temporary or permanent;
- Emotional and psychological issues such as depression, anxiety, shock, memory loss, insomnia, and other emotional disorders;
- The effect on you that physical limitations or disabilities have which prevent you from engaging in the lifestyle you enjoyed before the accident;
- Any other emotional or psychological trauma you endured or will endure as a result of your accident.
For more information about compensation for accident victims and the difference between special damages and general damages for personal injuries, visit:Types of Compensation for Personal Injuries
Before you can calculate your pain and suffering demand, you must know how much your special damages (or “specials”) are worth. Special damages include medical expenses, out-of-pocket expenses, lost wages, and property damage. Totaling the amount of your special damages is usually a straightforward task: you simply add up all of your bills, receipts, and lost income. To learn more about special damages and how to calculate them, click here.
Once you have arrived at a figure that accounts for all of your special damages, you can examine what juries are awarding people in your area with the kinds of injuries and economic damages you experienced. Included in this analysis will be:
- The type of pain and discomfort you experienced;
- The severity and duration of the pain and discomfort you experienced; and
- How much evidence you have of the impact the pain and suffering on your life.
Because the analysis of the value of your claim is complicated, you should consider consulting with a personal injury attorney. You should not assume that the claims adjuster will approve your demand without credible and persuasive evidence of the negative impact your pain and suffering has had on the quality of your life. Here are some general guidelines to keep in mind when calculating your pain and suffering demand.
Duration of Pain and Suffering
If your pain and suffering was limited to a brief period of time between the date you were injured and the completion of treatment, your pain and suffering demand should be lower. If your pain and suffering will continue into the future, or you are permanently disabled as a result of your injury, your pain and suffering demand should be much higher.
Type of Injury
Typically, soft tissue injuries such as whiplash, bruising, and minor sprains warrant a pain and suffering demand that is one-and-a-half (1.5) to three (3) times the amount of your special damages. More serious injuries like broken bones, burns, or herniated disks warrant a pain and suffering demand that is between three (3) and five (5) times the amount of your special damages. If you experienced a very serious injury such as brain damage or the loss of a limb, you may be entitled to a pain and suffering award that is greater than five (5) times your special damages. Cases involving these types of very serious injuries almost always require attorney representation.
Evidence of Pain and Suffering
The more evidence you have of your pain and suffering and how it has impacted your life, the greater your demand should be. Many people have found that keeping documentation of their recovery process helps remind them of details they are asked to recall during the settlement process. Discuss any pain you experience and how it has interfered with your everyday life. Be open about your experiences, even if some of the information you include is personal.
If you are experiencing psychological trauma or other mental health issues after an accident, you should see a psychologist or psychiatrist right away. Ask for a letter from your mental health care provider that assesses how your accident and injuries have impacted your psychological state. Give the claims adjuster as much credible evidence of your emotional state as possible.
Reasons to Increase Your Pain and Suffering Demand
If you experienced any of the following conditions after an accident, you should consider increasing your pain and suffering demand:
- After your accident, your injuries caused you to experience significant depression, anxiety, or insomnia;
- Your injuries prevent you from engaging with your family like you used to before your accident; or
- Your injuries require ongoing treatment that will interrupt your daily life well into the future.
The better prepared you are to convince the claims adjuster of the depth of your pain and suffering, the higher the insurance company’s settlement offer will be. Be realistic and honest in calculating your pain and suffering demand and negotiating a settlement. If you fabricate or exaggerate your experiences, you will damage your credibility and ultimately harm your case. You should never lie to an insurance company, as doing so can result in civil and criminal penalties.
The area of personal injury law is complicated. There are many statutes and appellate laws that govern personal injury claims and a layperson is taking a big risk by handling their own claim. There are many things that can happen through the course of a claim that could prevent you from recovering damages, or that expose you to personal liability. There is no way to point all of these out, but here are two that are extremely important to be aware of:
(Also Read: Factors That Can Limit Your Compensation)
- If you have been in an automobile accident and you have Underinsured Motorist coverage through your own insurance company, then before you settle with the at fault drivers insurance you must first obtain written consent to do so from your own automobile insurance carrier. This protects your insurer’s possible subrogation rights. If you do not obtain this consent your own automobile insurance carrier could deny your claim to them for underinsured motorist benefits.
- If any of your medical bills have been paid by private health insurance, Medicare or Medicaid, then those entities have a right to be paid back for the bills they have paid. This is called subrogation. This is a complicated area of the law, and it is not recommended that you attempt to resolve these financial obligations without the guidance of an attorney.
Example of Pain and Suffering Demand
Dan decides to use the multiple method to calculate his pain and suffering demand. The total amount of his special damages (including a hospital visit, the costs of prescription medications and a sling, and lost wages) is $15,000. Dan has kept a recovery diary, and determines that his injuries interfered with his daily life for a three-month period. He missed work and had trouble sleeping. He experienced moderate pain. He multiplies his special damages by a factor of one-and-a-half (1.5), and demands $22,500 for pain and suffering. After a series of negotiations with the insurance company, Dan agrees to accept $20,000 for his personal injury claim.
Disclaimer: Information provided on this site is NOT formal legal advice. It is generic legal information. Under no circumstances should the information on this site be relied upon when deciding the proper course of a legal action. Always get a formal case evaluation from a licensed attorney if you think you might have a personal injury lawsuit.