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:
Pain and suffering awards are part of general damages in personal injury cases. General 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 (specials) and can include medical treatment and therapy bills, lost wages, property damage, and out-of-pocket expenses.
Example: Medical Costs, Pain, and Emotional Distress
Sally was injured in a car accident. Her physician 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 physician also ordered a CAT scan to see if Sally's internal organs were damaged. The cost of the CAT 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, irritable, and depressed.
Unlike the cost of the MRI and CAT scan, there's no clear way to affix a price to Sally's emotional distress. When it comes time to settle her claim, the compensation for pain and suffering will be determined by reviewing Sally's symptoms of lingering pain and emotional distress, taking into account their severity and duration.
Insurance companies strongly oppose paying for pain and suffering. Their position is that most victims don't really deserve to be paid much more than their specials. Insurance companies are notorious for minimizing victims' claims of pain and suffering.
Punitive damages are even worse for insurance companies. A judge or jury can award a victim punitive damages in addition to pain and suffering. These damages are usually awarded when a judge or jury finds the at-fault party's conduct was willful, reckless, criminal, or otherwise mean-spirited.
Many states have put limits on how high punitive damages can be. The United States Supreme Court has limited punitive damages to nine times the amount of specials. But even with limits on punitive damages awards, the amounts can still 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 for punitive damages. All a victim can recover are his specials, regardless of his 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 the public from undue harm.
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 pain and emotional distress, the higher the adjuster's offer will be. Your ability to persuade the adjuster of the severity and duration of your pain and suffering can also play a role. Guided by experience, computer input, your evidence, and your persuasive abilities, the adjuster will come up with an amount he feels is justified for your pain and suffering.
The reference point traditionally used by attorneys and adjusters has been the 1 - 5x "multiple" system. In this system, 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.
Example: Facial Scar
A teenage girl suffered facial lacerations when she slipped and fell in a grocery store. Her only physical injuries were to her face. She required 10 stitches and some antibiotics. The total of her specials was only $600, which represented the cost of the emergency room visit and her medicine.
Unfortunately the laceration to her face left a permanent scar. She suffered embarrassment and humiliation at the hands of her school mates and wasn't able to attend school as a result.
Understanding the system and basis 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 that he assigned a multiple of two to your pain and suffering.
If you feel your evidence is strong enough, you can counter with a demand for $9,000 (a multiple of three). Compromising your claim at a multiple of two and a half would leave you with $7,500. This kind of back-and-forth and compromise is how most settlement negotiations play out.