Slip and fall victims deserve compensation for their hard costs and their pain and suffering. Find out how to successfully include pain and suffering in your personal injury claim.
Although many people are familiar with the term “pain and suffering,” they may not realize that it’s a crucial part of slip and fall injury claims.
When you’re injured, getting a fair and accurate assessment of your claim’s total value, including pain and suffering, is a priority.
But what’s the legal definition of pain and suffering? Even more important, how is it calculated in a slip and fall insurance claim?
Pain and Suffering Defined
In slip and fall accidents, if the victim’s injuries are the result of another party’s negligence, the victim deserves a fair settlement that represents the extent of their total damages. These damages include economic and non-economic losses.
Economic losses are the hard costs that an injured person incurs due to the slip and fall. They come with a predetermined value, making them simple to calculate.
Economic damages can include:
- Medical bills
- Past and future lost wages
- Damaged personal items such as jewelry or a watch
- Replacement costs for duties the victim can’t perform, like childcare and yard work
Non-economic losses are harder to justify than economic damages as their value isn’t predetermined.
Common non-economic damages include:
- Loss of consortium
- Scarring and disfigurement
- Pain and suffering
Pain and suffering is a category of non-economic damages that a victim can ask for in a personal injury case.
The Two Types of Pain and Suffering
There are generally two types of pain and suffering – physical and mental.
Physical pain and suffering is pain from actual physical injuries. It includes the pain and discomfort you’ve endured since your slip and fall and the discomfort you’ll likely suffer in the future because of your injuries.
Mental pain and suffering arises from your physical injuries. It’s generally described as any negative emotions that an injured person experiences because of physical pain and trauma.
Mental pain and suffering includes:
- Mental anguish
- Emotional distress
- Loss of enjoyment of life
Those with extreme mental pain and suffering can experience depression, anger, loss of appetite, lack of energy, mood swings, sexual dysfunction, and trouble sleeping. Some victims even develop post-traumatic stress disorder (PTSD).
Like physical pain and suffering, mental pain and suffering includes the effects the victim has suffered to date. It can also include any future suffering they might endure.
If you’re suffering extreme mental health damage from a slip and fall injury, a personal injury attorney can help protect your interests.
Example of Severe Mental Pain and Suffering
Joe slipped and fell due to broken floor tiles at the top of the stairs in an office building. He tumbled down an entire flight of stairs. Doctors diagnosed him with a concussion and multiple broken bones. He endured headaches and bone pain for several weeks.
As a result of his accident and injuries, Joe was angry and depressed. He developed a sleeping problem and had no appetite. His doctor referred him to a psychologist and a therapist.
Joe was diagnosed with anxiety and depression. He received six months of mental health treatments with medications and counseling.
Since Joe’s mental health issues are directly linked to his slip and fall accident, he can seek substantial damages for mental pain and suffering in addition to his physical pain and suffering.
There are levels or degrees of pain and suffering, ranging from severe mental health issues to forms of emotional distress that don’t require medical intervention.
You are justified in seeking pain and suffering compensation for injury-related effects on your quality of life, even if you suffered relatively mild injuries.
Example of Mild Pain and Suffering
Lisa slipped and fell in the mall after an employee failed to mop up a spilled soda in the food court. Her doctor diagnosed her with a back strain caused by the fall. Lisa’s injury prevented her from exercising for several weeks. She also missed a marathon she’d trained months for.
Unable to participate in the marathon, Lisa became slightly depressed, frustrated, and generally unhappy. While she didn’t have to see a mental health professional, she did endure some emotional pain and suffering as a result of her accident.
Insurance adjusters rarely compensate slip and fall victims for pain and suffering unless there are verified physical injuries. In other words, you won’t get far making a claim for the embarrassment of falling in public if you weren’t hurt.
Calculating Pain and Suffering in a Slip and Fall Claim
Unfortunately, there are no laws or magic formulas to determine exactly how much someone should receive for their pain and suffering after a slip and fall. Every case is unique.
One method insurance companies and lawyers use to calculate pain and suffering damages is to use a multiplier. This method assumes someone’s pain and suffering is worth a multiple of their total medical bills and lost earnings.
In other words, the total of your hard costs helps determine how much your non-economic damages are worth. The total of your economic and non-economic damages gives you a general idea of your claim’s settlement value.
Multipliers of between one and five can apply, depending upon many factors. Keep in mind that this method only provides an estimate of what your claim is worth.
If you recovered from mild injuries, a 1 to 1.5 multiplier would be a fair and reasonable way to calculate your pain and suffering compensation.
If you suffered severe injuries, your attorney will use a much higher multiplier. For example, someone who sustains a severe traumatic brain injury (TBI) or spinal cord injury (SCI) should receive more compensation, and a higher multiplier would apply.
A lower multiplier is fair if you:
- Sustained only soft tissue injuries
- Had higher expenses for medical tests than medical treatment
- Were treated by a chiropractor instead of a medical doctor
- Needed only a few medical visits
- Were able to return to your everyday life after a brief period
- Don’t have any permanent injuries, loss of use, or visible scars
- Didn’t need extra help caring for yourself
A mid-range multiplier might apply to injuries that:
- Impact daily life for a longer but limited time
- Made you depend on others in ways you didn’t before
- Caused you to miss important things such as school, vacations, or recreational activities
A higher multiplier can apply if one or more of these factors exist:
- Broken bones, injuries to internal organs, or nerve or spine damage
- Joint injuries, especially those that require surgery or reconstruction
- The need for many follow-up appointments or an extended recovery time
- Medical costs that are more for treatment than for diagnosis
- Permanent loss of use of one or more body functions or parts
- Scarring or permanent disfigurement
Factors that Impact Your Slip and Fall Compensation
The appropriate value of pain and suffering damages is often open to interpretation. However, some factors can change their worth. Some you have control over, and others you don’t.
Insurance companies want to settle claims for as little as possible. Adjusters are trained to consider how your case might look to a jury. If the victim has good evidence, and will appeal to a sympathetic jury, the insurer will pay more to settle out of court.
Adjusters will take into consideration whether the victim:
- Will be a good witness
- Is likable and credible
- Gives consistent and truthful testimony about their injuries
- Has their physician’s support for their claims of pain and suffering
- Has a diagnosis, injuries, and claims that make sense
- Exaggerates their claims of pain and suffering
- Has a criminal record or history of substance abuse
The policy limits of the applicable insurance coverage can also impact how much a victim will receive.
Also, if your state has damage caps in place, your compensation won’t exceed those limits.
What are Damage Caps?
Damage caps are legal limits on non-economic damages that apply to people seeking compensation for a personal injury. Each state has its own laws about damage caps, and some don’t address them at all. For example:
- California and New York don’t have damages caps
- Tennessee has a $750,000 damage cap for non-economic damages
- Hawaii has a $375,000 cap that only applies to pain and suffering
If you live in a state with damage caps, your recovery for pain and suffering can’t exceed the cap, no matter how severely you were injured.
When a slip and fall victim presents strong evidence, it can only increase the chances of receiving fair compensation for pain and suffering.
Adjusters are trained to scrutinize slip and fall injury claims. If the adjuster thinks the claimant used false evidence or exaggerated their pain and suffering claims, the adjuster will pay little or nothing for their damages.
Further, if injured persons are partly to blame for causing any of their slip and fall injuries, their compensation will be reduced in accordance with their share of fault.
Your Slip and Fall Settlement Demand
Typically, a slip and fall victim will file a claim with the at-fault party’s insurance company to receive compensation for the accident and injuries.
You can start the negotiation phase of an injury claim by sending a written demand for compensation to the insurance company. Your demand letter should include a section that explains your pain and suffering. Emphasize both the physical and mental distress you’ve endured.
When you write this section of your demand letter, try to guide the insurance adjuster through every stage of your injuries. Start from immediately after the accident through the present.
If you kept an injury claim log or journal, it will help you remember more specific details about your pain and suffering.
If your pain and suffering caused you to cancel a vacation, miss a business trip, or not attend a special family event, write about those details.
Be sure to clearly explain your pain and discomfort levels at each stage using expressive and descriptive words. Don’t hold back when it comes to describing how your pain and suffering impacts your life.
Describe any of the following if they apply:
- Side effects of prescription medications
- Strained relationships due to your injuries
- The inability to participate in normal daily functions
- Your need to rely on others for help
It’s crucial to express that you didn’t ask for your injuries and their consequences. Write about how you didn’t have the time or a desire to be incapacitated for weeks, suffering from constant pain, and missing work.
Describe the emotional effects your slip and fall brought into your relationships with your spouse, children, or other family members.
Sample Explanation of Pain and Suffering in Demand Letter:
“… Because of multiple dangers on the stairs, including two violations of the building code, I fell and suffered a shattered left arm. My arm injury required surgery and several months of rehabilitation. The injury caused some permanent loss of use to my arm.
My injuries caused several negative outcomes. For example, I couldn’t attend my family’s annual reunion in July because I couldn’t travel during my recovery. I had to rely on others for help dressing and taking care of myself. Also, the injury affected my dominant arm, and I don’t know if I’ll ever be able to return to my painting hobby or horseback riding.
My pain has been excruciating, requiring narcotic pain medications that made me dizzy and weak. Although I am off narcotic medications now, I take other daily pain medications that are hard on my stomach for shooting pains in my arm.
I have nightmares at least once a week about falling down stairs. I avoid taking stairs as much as I can now. If I must use them or even get too close to them, I become anxious and shaky.
The stress from not providing income or physical care to my family has negatively affected my relationships with my spouse and my children.
When I fell, I also suffered a cut on my lip that required stitches. My physician removed them after ten days.
As you can see from the enclosed photograph, the wound has left a scar on the outside of my right upper lip. My physician told me that its appearance will reduce somewhat over time, but a permanently visible scar will remain…”
Include Evidence Supporting Your Demand
Along with your letter, it’s essential to provide evidence for the pain and suffering you endure.
The insurance adjuster is less likely to suspect you are exaggerating your pain and suffering damages when you provide evidence. Evidence can vary depending on the specifics of your injury and your level of pain and suffering.
Examples of credible evidence include:
- Medical records describing your pain, limited range of motion, and emotional status
- Doctor’s orders about your activity or work restrictions
- Witness statements recounting the violence of your slip and fall, and your pain and distress at the scene
- Your injury journal or notes
- A calendar of events and activities you missed due to your injuries
How an Attorney Can Help
While some slip and fall victims are comfortable handling their own claims, others turn to a personal injury attorney’s expertise. Severe injury claims should always be handled by an attorney to ensure the best outcome for the victim.
An injury lawyer has the skill and experience to provide you with a realistic understanding of your claim’s strengths and weaknesses. The attorney can also give you the estimated value of your claim.
If your damages exceed the insurance policy limits, your attorney can explore going after the property owner for the difference.
Ultimately, your attorney can help you make wise choices at each stage of the case, and they can help you make the most of your injury settlement. Your attorney can negotiate a reduction of medical liens, so you walk away with more money in your pocket.
The best part is that you don’t need any money upfront for assistance from a lawyer. Reputable slip and fall lawyers usually offer a free consultation.
If you decide to hire them, they work on contingency fees. In other words, they don’t receive payment until you receive a settlement. Once they negotiate fair compensation on your behalf, they’ll receive a prearranged percentage of the money.
Reach out to legal counsel today to find out more about including pain and suffering damages in your claim.
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