Pain and Suffering Damages After a Car Crash
If you were in a car crash and suffered injuries for reasons that were not your fault (or at least not fully your fault), you may be entitled to various kinds of compensation. One of those categories of compensation is termed “pain and suffering” damages. This is a catch-all bucket term for, but not limited to, the inconvenience, trauma, pain, stress and distress that you experienced as a result of the accident. Below is an explanation of what is covered under pain and suffering damages, as well as how such damages are calculated.
What Do Pain and Suffering Damages Compensate?
Pain and suffering may be a misnomer because one might assume the term only refers to physical pain. Obviously, these type of damages are meant to compensate you for the physical pain that accompanied any injuries sustained in a car accident. Even so, there are other physical symptoms for which you may be entitled to damages, for example, limited mobility, inability to exercise, inability to do certain typical activities, any potential shortening of life, continuing or chronic aches and pains, side effects from medication or surgery, scarring, and/or disfigurement.
In addition, however, “pain and suffering” damages are also meant to compensate you for the mental and emotional distress that can accompany an accident. Examples of these non-physiological after-effects of an accident include depression, anxiety or trauma around cars and driving, embarrassment or other emotional responses to scarring or disfigurement.
The idea behind compensating you for all types of pain and suffering is that, even though you may never truly be put back in the physical, mental and emotional condition that you were in before the accident occurred – and you will never get the time back that you had to spend getting medical care and recovering from your injury – the monetary compensation is an attempt to remunerate you as if it were putting you back in the condition you were in before the accident.
Importantly, pain and suffering damages are also meant to compensate you for physical, mental and emotional pain and distress that it is determined you will likely suffer in the future because of the car crash.
Calculating Pain and Suffering Damages
Because of the variety of mental, emotional and physical pain and stress that you can be compensated for as part of your pain and suffering damages, quantifying that amount can become complicated. To this end, lawyers, insurance companies, and courts and juries use different methodologies to account for your overall damages in this category.
Note that compensation for pain is a separate category of damages from compensation for the medical expenses you incurred because of the accident. Damages for medical expenses is a separate category of damages that you are entitled to – and one that is easy to prove based on receipts showing the costs of your medical care, prescriptions, and any follow-up treatment.
When pain and suffering damages are determined in the context of a claim or claims against one or more insurance companies, there are a few different methodologies that are used to calculate the amount of damages you are entitled to. The most common ones are the use of a multiplier and the use of a daily rate.
Using a multiplier involves taking the amount of tangible, quantifiable damages (your medical bill receipts, lost earnings, loss of property), and multiplying that by a certain number to come up with a total amount of compensation for your pain and suffering. That number is called the multiplier, which is typically anywhere between 1.5 and 5.
When using a multiplier to determine damages, the issue between the parties will obviously be how small or large the multiplying number should be. Some of the factors that will increase your multiplier include, but are not limited to: the extent and severity of your injuries, the visibility of your injuries, the length of time required for recovery, any permanent, non-recoverable consequences, and the primary responsibility (by far) for the injury, was the other party that caused the accident. When all of these factors are present, and particularly when liability is clearly with the other party and when certain injuries are in some way permanent, your multiplier could be as high as 5.
The daily rate, or “per diem” method, on the other hand, compensates you by day for the number of days that you had to deal with the pain and stress arising from the accident. Obviously, here, the issue is how high or low the daily rate should be. One rule of thumb that is sometimes used is to prorate your salary to get to your average daily earnings. That figure is then used as the daily rate for the purposes of your calculating your pain and suffering compensation, which is then multiplied by the number of days you were in mental, physical, and emotional distress caused by the accident. The logic here is that dealing with consequences of the accident is equivalent to the effort and burden of going to work every day. Note that these damages would be on top of the compensation for lost earnings that you are entitled to in the event that your injury forced you to take time out of work for medical treatment or recuperation.
When a court or a jury is determining pain and suffering damages, they do so at the conclusion of a trial which a victim has brought a cause of action against the party or parties allegedly responsible for the accident. During the trial, both sides present evidence and the testimony of experts and witnesses regarding the facts of the case and theories as to who is liable/to blame.
When determining the amount of pain and suffering damages to award the victim, the judge instructs the jury to come up with a number based on their common sense and practical judgment of what would be a fair and reasonable compensation for the trauma, pain, and discomfort that you experienced. As you may imagine, the amount of these jury awards vary widely. These amounts are influenced by factors such as the makeup of your jury, how severe your injuries look and actually are, the invasiveness of any surgery or medical procedures required, the time it took to recover, how sympathetic they are, how your lawyer presented your case, etc.
As you can see from the above, determining and quantifying pain and suffering damages is not an exact science. It is best to confer with and hire an experienced lawyer to help you through these negotiations – even if you are dealing with insurance companies and have not brought a cause of action in the court system. Knowing precedent, previous awards for similar injuries, and understanding tactics opposing insurance companies might use to offer you lower compensation is valuable experience that a seasoned attorney should have, which will ultimately help you get the compensation that you deserve.