Pain and suffering describes the physical pain and emotional distress a victim endures as a result of a personal injury accident. Emotional distress (also called “mental anguish”) can include depression, anxiety, insomnia, irritability, and more.
Pain and suffering awards are considered general damages. These damages are paid to a victim in addition to the actual costs associated with his injuries and resulting treatment. Actual costs are referred to as special damages (or “specials”) and include medical and therapy bills, lost wages, property damage, and out-of-pocket expenses.
Example: Detailing Medical Costs, Pain, and Emotional Distress
Sally was injured in a car accident. Her doctor ordered an MRI to see if she tore any ligaments or tendons, or ruptured a disk in her back. The cost of the MRI was $2,000. The doctor also ordered a CT scan to see if Sally’s internal organs were damaged. The cost of the scan was $1,500. When it comes time to settle her claim, Sally will be reimbursed $3,500 for these special damages.
The accident also left Sally with lingering back pain. The pain prevented her from sleeping through the night. She was also unable to bend down to pick up her young children. The pain hindered the physical intimacy she previously shared with her husband. As a result, Sally became anxious, bitter, and depressed.
Unlike the cost of the MRI and CT scan, there’s no clear way to put a price on Sally’s emotional distress. When it comes time to settle her claim, the pain and suffering award will be determined by reviewing Sally’s symptoms of lingering pain and emotional distress, taking into account their severity and duration.
How the Adjuster Calculates Pain and Suffering
Imagine you’re at the point where you’ve completed your medical treatment and therapy. You still have some lingering pain, but the doctors cleared you to return to work. It’s time to prepare the documentation for your settlement demand letter. You’ve totaled your special damages, but aren’t quite sure how to assign an amount for your pain and suffering.
At this point you should understand how claims adjusters evaluate pain and suffering. When deciding the amount of compensation he’ll offer, an adjuster relies primarily on his experience. Additionally, he’ll load all your claim data into a computer program and see what figure it comes up with.
The more evidence you have to prove your level of pain and emotional distress, the higher the adjuster’s offer will be. Your ability to persuade him of the severity and duration of your pain and suffering can also play a role. Guided by experience, computer input, evidence, and your persuasive abilities, the adjuster will come up with an amount he feels is justified.
A basic method used by some attorneys and adjusters is the 1-5x multiple system. In this system, the number one equals the lowest amount of pain and suffering, and five (or more) represents the highest amount. To arrive at a multiple he believes is fair, the adjuster will take into account several factors.
Primary factors the adjuster considers:
- Seriousness of the injury
If you suffered only soft tissue injuries (sprains, lacerations, bruising, etc.), the adjuster will probably offer a multiple of 1 – 2x the full amount of your specials. If you suffered a ruptured disk, broken collarbone, or other similar “hard” injury, the multiple may be between 2 – 3x.
For very serious injuries, such as brain damage or permanent scarring, the multiple will be 5x or more, depending on the severity of the injury. Remember, serious injury cases should only be handled by an experienced personal injury attorney.
- Liability of the insured
There are occasions when the insured’s liability is questionable. This happens when the adjuster believes the victim is partially at fault, or there was a third-party intervening force which contributed to the accident. These questions of liability can result in a lower offer.
- Future prognosis
Serious injury victims often require extended medical treatment and therapy. Their pain and discomfort may linger for some time. These extended treatment periods and continued pain can result in greater emotional distress, so the pain and suffering award will be higher.
- History of jury verdicts
Jury verdicts in personal injury cases can be higher in certain areas of the country. For example, a broken arm case in a rural county in Texas may get a lower judgment than the same case in New York City. Adjusters are aware of these differences and rely on them when considering their settlement offers.
You should visit your local courthouse and research jury verdicts in cases similar to yours. Doing so will help inform your demand for settlement. You can also research this information at a website like VerdictSearch.com.
Some claims don’t fit into the basic 1-5x multiple method. The circumstances of the injury or its impact on lifestyle and future well-being may be out of proportion to the normal standards. Each case must be considered on its own merits.
Example: Facial Scar
Jane is a teenage girl who suffered a facial laceration when she slipped and fell in a grocery store. Her only physical injuries were to her face. She required 12 stitches and some antibiotics. The total amount of her special damages was only $700, which represented the cost of the emergency room visit and her medicine.
Unfortunately, the wound to her face left a permanent scar. She was embarrassed and humiliated by some children at school. She became depressed from the teasing and from knowing she’d be scarred for the rest of her life.
Negotiating Your Settlement
Insurance companies strongly resist paying fair amounts for pain and suffering. They often seem to take the position that most victims don’t really deserve much more than their special damages, particularly in minor injury cases. Insurance adjusters are notorious for minimizing victims’ claims of pain and emotional distress.
Understanding the system for calculating pain and suffering will help you arrive at a fair amount for your settlement demand. If your specials are $3,000 and the adjuster offers you a total of $6,000, you’ll know he assigned a multiple of 2 for your pain and suffering.
If you feel your evidence is strong enough, you can counter with a demand for $9,000. Compromising your claim in the middle would leave you with $7,500. This kind of back-and-forth negotiation and compromise is how most settlement negotiations play out.
Punitive damages add another level of compensation. A judge or jury can award punitive damages in addition to pain and suffering. They are usually awarded when the at-fault party’s conduct was willful, criminal, or otherwise egregious. Many states have limits on how high punitive damages can be, but even with limits, punitive awards can be staggering.
Insurance companies would prefer that every state in the country adopt no-fault legislation. No-fault states generally don’t allow victims to sue for pain and suffering or punitive damages. If a victim doesn’t meet a certain threshold, all she can recover are her special damages, regardless of her pain and emotional distress.
Insurance companies are among the richest companies in the world. Without the checks and balances that pain and suffering and punitive damages provide, these companies and their insureds would be less motivated to protect others from undue harm. Remember this, and don’t hesitate to pursue fair compensation for your pain and suffering.
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