In personal injury claims, pain and suffering represents the emotional distress (or “mental anguish”) a person endures after being injured by the negligent acts of the at-fault party. Emotional distress can include the following:
- Actual pain and discomfort, whether temporary or permanent
- Depression, anxiety, memory loss, insomnia, or other emotional disorders
- Physical limitations, including the inability to play with your children or hug them
- Loss of consortium (inability to be intimate with your spouse)
- Any other emotional or psychological trauma
What to Consider When Calculating Your Demand
A basic method of calculating a pain and suffering settlement is to use a multiple of your actual costs. These can include medical and therapy bills, out-of-pocket expenses, lost wages, and property damage. These actual costs are known as Special Damages, or “specials.” Pain and suffering is in a separate category, known as General Damages.
Totaling the amount of your specials is a relatively straightforward task, you simply add up all your bills and receipts. But coming up with a figure that fairly represents your pain and suffering can be a challenge.
Pain and suffering can be separated into two categories:
- Current pain and suffering is what you endure from the time of the injury through the completion of medical treatment and therapy. It ends at some point. Its duration can be measured.
- Current and future pain and suffering is what you endure from the time of the injury, through the course of medical treatment, and into the indefinite future. Its duration is unknown and open-ended.
When calculating your settlement demand, you must first consider which category your pain and suffering falls into. If your suffering was limited to the time between the injury and completion of treatment, your demand will be lower. If it continues into the indefinite future, your demand will be higher.
Either way, you must convince the insurance adjuster of the negative effect the pain and suffering has had on your quality of life.
You can’t just demand a large amount of money for your pain and suffering and expect the adjuster to roll over. You have to provide a reasonable and credible basis to justify the amount, and back it up with evidence. If not, your demand will be rejected.
When responding to settlement demands, most adjusters expect to add a small amount on top of the special damages to cover pain and suffering. An inexperienced claimant might accept that amount and move on. Attorneys and informed claimants aren’t as quick to take the first offer. They know persuasive arguments can raise pain and suffering amounts.
Using The Multiple Method
In addition to researching previous jury verdicts, attorneys and adjusters calculate pain and suffering reimbursement using the multiple method. This method takes the total amount of your specials and multiplies it by anywhere from 1 – 5 times, or even higher in serious injury cases. The multiple can be raised or lowered depending on:
- The type of pain and discomfort
- Its severity and duration
- Your persuasive abilities
Soft tissue injuries like whiplash and minor sprains are often multiplied by 1½ – 3x medical bills. Broken bones or herniated disks can range between 3 – 5x medical bills. Debilitating or permanent injuries like scarring and brain damage can see specials multiplied by much greater than 5x. Serious injury cases like these always require attorney representation.
Increasing Pain and Suffering Compensation
Before you begin calculating your pain and suffering demand, think about how you’ll convince the adjuster to raise the multiple. You’ll list those reasons in your demand letter, and later rely on them in settlement negotiations. Your arguments must be logical, and based on as much credible evidence as you can provide.
Here are some examples of reasons to raise a settlement demand:
- The injury caused you to sink into a depression. Prove this with medical records from a psychologist or psychiatrist, along with a narrative detailing your symptoms.
- You couldn’t engage with your family like you used to. Prove this with letters from your children describing your limited interaction with them, along with a schedule of their activities which you missed due to your injury.
- You weren’t able to sleep. Prove this with copies of prescriptions for sleeping pills, and a personal sleep diary you’ve kept since the accident.
To succeed in raising your settlement amount, you must be able to put your pain and suffering into words that are clear, reasonable, and persuasive to the adjuster. Take time to think about what you lost and how you suffered as a result of the injury. You only have one opportunity to settle your claim, so don’t hold back.
Keep a journal and write down specific instances of how your injury interfered with your daily life. Be open and honest, even if you feel some of the information is too personal.
The better prepared you are to convince the adjuster of the depth of your pain and suffering, the higher your final offer will be. Remember, to fairly calculate your pain and suffering settlement, you must be realistic. Fabricating or exaggerating experiences can damage your credibility and harm your case.
Examples of Non-monetary Losses
Example of Loss of Family Participation
You’re a parent who’s always been involved in your child’s school activities, and now your injury prohibits you from your usual involvement. Missing a child’s activities can result in depression, anxiety, guilt, and more. Whether you missed your daughter’s soccer playoff game, or your son’s piano recital, you’ve forever lost that wonderful moment in time.
What are those family moments worth to you?
Example of Depression
You were injured in June and suffered pain and discomfort through the end of your physical therapy in November. Before the injury you played golf, enjoyed dinners with your wife, and were otherwise enjoying a peaceful and rewarding life.
But during the six months of medical treatment and therapy, the pain prohibited you from playing golf, dining out, and enjoying intimate evenings with your wife. You suffered depression and irritability for six months.
What is six months of depression worth to you?
Pain and suffering is different for each individual, so you first have to determine how your injuries affected your lifestyle and emotional well-being. Then you have to present reasonable arguments to convince the adjuster, and back up those arguments with evidence. That’s when you’ll see your settlement offer increase.
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