What Do Pain and Suffering Encompass?
The term “pain and suffering” can be a bit misleading. After all, the injuries that cause pain and suffering after an accident are treated in a hospital, urgent care, or at a victim’s primary doctor, depending on their severity. However, pain and suffering and hospital bills are two separate entities when it comes to taking a personal injury case to court.
If you have been the victim of an accident caused by someone else’s negligence, it’s important to learn the difference between costs like hospital bills and those that fall under the category of pain and suffering. These two separate types of costs are defined as general damages and special damages.
What are General Damages?
Before you can learn what types of damages fall under the category of “pain and suffering,” you need to learn which ones do not.
General damages encompass damages that are typical of most personal injury cases. These damages come about as a result of injuries and property damages sustained in the accident. Some of these damages are immediate, while others might come about later on, as a result of a victim’s injuries and recovery.
These damages are economic damages, meaning that they cost a set dollar amount to treat, repair, or otherwise pay for. Their value is usually set and clear; there is little to no discrepancy in what these bills and fees cost a victim. This makes seeking compensation for general damages easier than seeking compensation for non-economic damages, or pain and suffering.
Some examples of general damages include:
- Hospital bills
- Ambulance ride cost
- Any medical equipment needed for immediate and continuing treatment
- Job loss, including lost wages and compounding expenses
- Motor vehicle repairs
- Replacement cost for totaled vehicles
- Alternative accommodations for disabling injuries
- Counseling costs
- Physical rehabilitation
General damages are often paid for by the insurance company of the person responsible for the accident. In states that have no-fault laws, the victim’s insurance company may pay for these damages. The same is true of accidents where it is not clear who is at fault or both parties are at fault.
Sometimes general damages are paid for by the insurance company in full in a timely manner. In that case, a personal injury lawyer’s services may not be needed.
What are Special Damages?
In contrast to general damages, which are easy to assign a cost to and often easy to seek compensation for, special damages are harder to define. This also means that they are more difficult to fight for.
Special damages are non-economic damages. This means that they do not have a set dollar amount that can be easily assigned to them.
Some examples of special damages include:
- Permanent injuries or disability that makes daily tasks and life more difficult
- In the case of an accident where a victim died, loss of companionship for surviving family members and loved ones
- Lower quality of life than prior to the accident
- Loss of enjoyment of life
- Lost eyesight or hearing
- Mental suffering, including the development of mental illnesses like PTSD and depression
- Chronic and lasting pain
When it comes to fighting for non-economic damages in court, these and other special damages are often labeled “pain and suffering.”
Who Can File a Claim for Pain and Suffering?
Any kind of accident can cause pain and suffering. In fact, it could be argued that all accidents cause at least some small amount of one or both.
Sometimes the mental pain caused by a minor fender bender might not be worth taking the person responsible for the accident to court. It will cost you legal fees and your time. It may also cause you even more stress and mental anguish in the process.
Calculating pain and suffering is not an exact process. In the same way deciding when to fight for compensation and when it is not worth it is up to each individual. Not every victim will choose to include pain and suffering in the settlement that they are seeking. But every victim of a personal injury case is able to do so.
A few types of personal injury cases in which compensation for pain and suffering can be claimed include, but are not limited to:
- Animal attacks or bites
- Workplace injuries
- Medical malpractice cases
- Boating accidents
- Slips or falls on another person’s property
- Motorcycle accidents
- Car accidents
- Bicycle accidents
- Assault and battery cases
In most cases, an individual, group, or company’s negligence or criminal intent led to the accident and the subsequent injuries suffered by a victim or victims.
What is a Fair Settlement for Pain and Suffering?
Pain and suffering caused by an accident affect victims in very different ways. This is true even when two victims suffer the same conditions. Mental anguish in one individual could lead to PTSD. This might make it difficult to get behind the wheel again. Another might suffer severe depression. This could make it difficult to even leave their home, let alone work or care for their family.
Because each individual victim and accident is unique, there is no clear cut answer to what constitutes a fair settlement for pain and suffering.
Instead, the value of an individual’s pain and suffering is calculated on a case-by-case basis.
How are Pain and Suffering Costs Calculated?
From an individual’s mental anguish to a life-altering disability, assigning a value to pain and suffering might seem like a guessing game. However, an experienced personal injury attorney can help you set a value, using a set of calculations, local limits, and their own knowledge of similar cases and their settlements.
When it comes to making calculations to determine what pain and suffering are worth in a particular case, there are two common methods used by personal injury lawyers; the per diem method and the multiple method.
What is the Per Diem Method of Calculating Pain and Suffering?
In Latin, per diem means “by the day.” When most people think of per diem, they often think of a set amount provided by employers to employees to use for food and other expenses, often on business trips. In that example, per diem is set based on what an employee will need in a given day, based on a number of factors.
The per diem method for calculating pain and suffering works in a similar way. Instead of determining how much an individual will need on a given day, the per diem method seeks to determine what a day is worth to an individual.
Often, this value is based on the wages that an individual would earn in a day. If a victim does not work or their work is less-than-steady, this total may be calculated more loosely. It may be calculated as an estimate of what losing a day because of injuries, including both mental and physical, would cost the victim.
Once the value of a single day is determined, that value is then multiplied by the number of days that a victim has suffered.
For instance, say that a victim earns $100 a day at their job. They are in a car accident and as a result, they are unable to work for 30 days. Using the per diem method, a personal injury lawyer would take that $100 a day and multiple it by 30 days, giving them a total of $3,000. The value of the victim’s pain and suffering that the attorney would include in their settlement is $3,000.
This method may be used by lawyers when filing a claim for a client. However, it is usually not used or accepted by insurance companies.
What is the Multiple Method of Calculating Pain and Suffering?
The per diem method is just one option for calculating pain and suffering. While it may be used by attorneys, insurance companies typically use the multiple method instead.
The multiple method starts by totaling a victim’s economic damages. This includes all of the damages listed above, like hospital bills, ambulance costs, and vehicle repairs. Any cost that can be easily assigned a dollar amount is included as an economic damage and will be included in this total.
Keep in mind that in order for economic damages to be included in the total, you will need to be able to show proof. This includes providing a receipt, a bill, or a hospital record. These materials will prove that you truly suffered that economic setback as a result of an accident.
Once the total amount of economic damage sustained by a victim is calculated, this number will be multiplied by a number from one to five. Which number is chosen will depend on the case. It may also take into account the level of suffering, the extent of economic damages, and a variety of other factors.
When an insurance company does these calculations, they may not share why they chose to multiply by a certain number. Trying to perform the multiple method on your own to calculate your pain and suffering and what you feel is a fair settlement is a mistake. Instead, you will want to enlist the help of an experienced lawyer. He or she will be better able to estimate a settlement that you are likely to receive in court.
Why Do You Need a Lawyer to Fight for Compensation for Pain and Suffering?
Calculating a value for your pain and suffering can be a challenge. Proving to an insurance provider or to the courts that you deserve a settlement for your pain and suffering is even more so.
Many injuries and conditions that fall under pain and suffering are not only tough to assign a value to, but also difficult to prove.
Chronic pain and mental illness are very real conditions. But the pain that they cause can be tough to show in court. Even some physical injuries won’t show up on your x-rays or on the surface of the skin. This includes injuries like tissue or nerve damage, sprains, and even whiplash. Underlying conditions can sometimes contribute to lasting injuries. While these conditions may have existed prior to an accident, it is the accident that worsened them. However, insurance companies and the lawyers of the person responsible may fight this claim.
Personal injury lawyers are skilled at calculating and proving pain and suffering. Once they help you determine value, they will work tirelessly to prove to the insurance company and/or the court that you truly are suffering because of someone’s negligence in causing your accident.
Fighting for Compensation for Pain and Suffering
Getting treatment for your immediate injuries and fixing damage to your property after an accident can be tough to deal with. The unseen side effects, like depression, disabling injuries, chronic pain, and a lower quality of life can be even harder to face.
No matter the extent of your pain and suffering, you deserve compensation. A personal injury lawyer can help you learn the ins and outs of filing a claim for pain and suffering. Your attorney will guide you through the legal process of fighting for what you deserve.