10 Tips for Negotiating a Pain and Suffering Claim After a Car Accident

Use these tips to persuade the insurance adjuster to pay fair compensation for pain and suffering as part of your car accident claim.

If you’ve recovered from relatively minor car accident injuries, you can probably negotiate a fair settlement without an attorney, so long as you’ve had a little coaching. Claims for severe injuries or permanent impairments should be handled by an experienced attorney for the best results.

Insurance settlements include compensation for “special damages,” meaning your hard costs like medical expenses and lost wages. Settlements also include compensation for “general damages” like pain and suffering, mental distress, inconvenience, and loss of consortium.

Here we walk you through ten tips to help you negotiate your pain and suffering compensation after an auto accident.

10 Tips for Negotiating Pain and Suffering:

  1. Manage Your Expectations for Compensation
  2. Know What Counts as Pain and Suffering
  3. Support Your Claim with Outside Factors
  4. Tell a Vivid Story of Your Pain and Suffering
  5. Describe Your Distress During Recovery
  6. Link Evidence to Your Pain and Suffering
  7. Make the “Before and After” Clear to the Adjuster
  8. Remind the Adjuster You’ll Need More Treatment
  9. Remember the Adjuster is Not Your Friend
  10. Get Legal Advice When You Need It

Tip 1: Manage Your Expectations for Compensation

Negotiating the general damages portion of your personal injury claim is challenging because there are no objective ways to measure the “pain and suffering” (non-economic damages) associated with car accident injuries.

A common way to calculate the value of an injury claim is to total your documented hard costs (economic damages) like medical bills and lost wages, then use a multiplier to account for pain and suffering.

Severe injury claims might justify a multiple as high as five or six times the total hard costs. For minor injury claims the multiple is much lower, ranging from a few hundred dollars to 1 or 1.5 times your hard costs.

Most people handling their own injury claim are dealing with soft tissue injuries like muscle strains, sprains, bruising, and maybe a couple of stitches. If you were treated and released after a crash, and only had a few days of stiffness or sore muscles, don’t expect much compensation for pain and suffering.

If your ER visit included some X-rays or a CT Scan to rule out anything more serious, your hard costs might be higher, but you won’t be able to get two times that amount for your pain and suffering.

Now, if those X-rays and scans showed a ruptured disc, torn ligament, or other tangible proof of the scope of your injuries, you’ll have a stronger argument for more pain and suffering compensation.

Tip 2: Know What Counts as Pain and Suffering

To successfully negotiate a car accident claim, you must know what qualifies as pain and suffering. “Pain and suffering” is a term used for the physical pain and emotional distress you had to endure because of the injuries you suffered due to the car accident.

Technically, it’s compensation for subjective pain. For example, if your back was fine before the collision, and now because of the collision your back hurts every day, the money paid for pain and suffering is supposed to be for that daily pain you now suffer.

Suffering also includes psychological suffering. The fear, helplessness, and terror you experienced from the collision are all part of the suffering.

If you couldn’t pick up your crying baby for two days because of lifting restrictions, or were embarrassed by needing help to bathe, those are also examples of emotional distress that can count as “pain and suffering.”

Tip 3: Support Your Claim with Outside Factors

Outside factors are circumstances surrounding the accident that could easily make a jury more sympathetic if your injury claim turned into a lawsuit.

Using outside factors can give you an edge in negotiating your pain and suffering compensation.

Key outside factors might include:

  • The at-fault driver was intoxicated
  • You had to be cut out of your car
  • There were fatalities in the crash
  • The police report cleared you of any contributing fault
  • The other driver was ticketed for violating traffic laws

During negotiations, you might explain to the adjuster how certain outside factors increased your fear and distress caused by the accident, and that you would never have suffered if not for their insured’s negligence.

Tip 4:  Tell a Vivid Story of Your Pain and Suffering

Use vivid and descriptive language when explaining to the adjuster how the collision affected you on a personal level.

Include such things as the sheer terror of the collision, the helplessness you felt, and the belief you were about to die. These are powerful feelings and are certainly not commonplace. What are those feelings worth? That is what you have to convey to the adjuster.

There is little argument about how the car accident affected you physically, but only you know how that horrible event affected you personally. Only you know the emotional and psychological damage you suffered that day, and will suffer into the future.

You can effectively communicate those feelings to the adjuster by telling a vivid story about your pain and suffering.

When speaking with the adjuster, your starting point should not be the collision, but the time just before it. Let the adjuster know that up until the collision the day was going as it normally did.

Example: Describing the Emotional Effects of a Car Accident

“I was driving to work, looking forward to the weekend with my friends. It was a beautiful day. I saw in my rearview mirror a car cutting in and out of traffic. It looked like the car was speeding and weaving closer to me. I began to feel a little sick to my stomach as extreme fear started to set in.

The next thing I remember was the terrible sound of screeching tires. I sat frozen and felt completely helpless as I slid across three lanes of traffic at more than sixty miles an hour. My feelings turned to sheer terror as I saw the concrete wall, which borders the expressway looming closer.

I remember praying, knowing I was going to die at any second. The next thing I remember was people yelling at me as I lay in my car, slumped over, bleeding and confused. At some point, I remember the paramedics checking me for injuries.

As my head began to clear, I felt pain like I’d never felt in my life. My leg and collarbone area felt like they were being stuck with hot knives. I was in pain and felt so sick and dizzy that I vomited all over myself before they got me out of the car.

The ambulance ride to the hospital was a blur. To this day there are still some things I can’t remember.”

Tip 5: Describe Your Distress During Recovery

The fear and pain you experienced from the collision were only the beginning of your ordeal, thanks to the negligence of the at-fault driver. Use vivid language when describing your experiences after the car accident and during your recovery.

Continuing from the above example, talk about how mortified you were to be sick and covered in vomit, in addition to your physical pain and distress.

Describe your embarrassment and distress at having your clothing cut off in the emergency room as they checked for more injuries. Tell how it felt to have your partner try to wash vomit out of your hair when you got home because you couldn’t shower or bathe unassisted.

More examples of pain and suffering might include:

  • Inability to sleep in your bed because you couldn’t get upstairs
  • Nausea and other side-effects of medication
  • Inability to care for children or elderly parents
  • Sleep disturbances from pain
  • Nightmares about the accident
  • Fear of driving since the crash
  • Painful physical therapy sessions

Tip 6: Link Evidence to Your Pain and Suffering

Simply stating you were completely miserable for a week after the crash won’t get much sympathy from the adjuster. You must justify your pain and suffering claim.

Evidence of your suffering can include:

  • Doctor’s notes in your medical records describing tenderness and pain during examination
  • Inability to care for your child because the doctor ordered you not to lift more than ten pounds
  • Witness statements about your pain and distress at the accident scene
  • Driving restrictions while you were taking pain medications for your injuries
  • Your injury diary, detailing sleep disturbances, pain levels, and the help you needed from family and friends

The more evidence you can point to during your pain and suffering negotiations, the easier you make it for the adjuster to increase your payout.

Tip 7: Make the “Before and After” Clear to the Adjuster

Let’s say before the collision you never had any real physical or psychological problems. You were healthy and enjoyed working out, playing sports with your friends, and dancing. Up until the collision you enjoyed a healthy personal relationship with your partner.

Then suddenly, the at-fault driver’s recklessness changed everything. Just like so many others who’ve suffered back injuries from car accidents, your pain and discomfort have not stopped. The pain reminds you every morning and throughout every day how your life has been seriously altered.

You’ve tried getting back into the swing of things, but the pain and discomfort are so intense that you’ve lost any pleasure you used to have while engaging in sports, dancing, and intimacy with your partner.

Personal Injuries Impact Family Members

The loss of companionship and intimacy with your spouse is a sensitive subject and one which you’d prefer not to speak with the adjuster about, but this lack of intimacy (legally called “loss of consortium”) is recoverable as part of your overall pain and suffering.

Loss of consortium also applies to your children, who lose the companionship and nurturing of an injured parent. Be sure to describe to the adjuster how distressing it was for you and your child when you were unable to care for them or missed special events.

Paint a clear picture for the adjuster of how different your life is after the accident. The more concrete your descriptions of how your life has changed for the worse, the more real those losses will sound to the adjuster.

Tip 8: Remind the Adjuster You’ll Need More Treatment

Some injuries, like concussions or joint sprains, take time to heal completely. Tell the adjuster if you will need additional therapy, or if the doctor said you probably won’t “feel like you did before the accident” for at least a year or more.

Point out entries in your medical records that suggest you might need more testing in the coming months. Follow-up tests are necessary to be sure you’ve completely recovered. Ask your doctor to lay out all possible complications and medical treatment you may need down the road, and relay that information to the adjuster.

Let the adjuster know your concerns about having to live with uncertainty about your health, through no fault of your own.

Tip 9: Remember the Adjuster is Not Your Friend

Don’t be fooled by a sympathetic adjuster. They are trained to settle injury claims quickly for as little money as possible. Be wary of friendly “small talk.” It’s one of the tactics insurance adjusters use to get information they can use against you.

Insurance company adjusters will not look out for your best interests, so don’t be fooled into admitting you’re overdue on your rent, looking for a new job, or used the time off work after the accident to go on vacation.

You want the claims adjuster to take you and the negotiations seriously.

Sound organized and in control when speaking to the adjuster:

  • Be professional and polite.
  • Your tone of voice should be steady, never shrill or sarcastic.
  • Don’t let the adjuster think you’re desperate or in a hurry to settle.
  • You don’t have to know everything. It’s okay to say you’ll get back to the adjuster.
  • Pace yourself. You won’t settle your accident claim in one day.

Tip 10: Get Legal Advice When You Need It

Negotiating compensation for your pain and suffering after a car accident can be challenging, but by negotiating with patience and persistence, you should be able to reach a compromise with the insurance adjuster.

How much you are willing to compromise is a personal decision. Once you’ve successfully negotiated your hard costs, it might be hard to come down too much from your original demand for pain and suffering damages.

It helps to know you can consult with a personal injury attorney at any time during claim negotiations.

Sometimes, getting an attorney involved is all it takes for the adjuster to stop playing hardball and offer a fair settlement amount for your pain and suffering.

Most car accident attorneys offer a free consultation for claimants, and there’s no obligation on your part. There’s only upside for you to get an initial case evaluation with a local personal injury lawyer.

Charles R. Gueli, Esq. is a personal injury attorney with over 20 years of legal experience. He’s admitted to the NY State Bar, and been named a Super Lawyer for the NY Metro area, an exclusive honor awarded to the top five percent of attorneys. Charles has worked extensively in the areas of auto accidents,... Read More >>