How are Pain and Suffering Calculated?
Brian White | April 17, 2020 | Personal Injury
Accidents can lead to major injuries and property damage. Often, these can lead to lawsuits where someone is seeking to recover compensation for their injuries or damage. In personal injury cases, you may have heard the term “pain and suffering”. This is an amount of money that may be awarded to help the plaintiff after the accident. What exactly does that term mean and how is it calculated?
What is pain and suffering?
Pain and suffering is a main part of any personal injury case. There are two types: physical and mental. Physical pain and suffering is the real and actual pain and suffering that a person experiences. This includes the pain they went through during and after the accident. It can also include future pain and suffering if their injuries are long-term or even life-altering.
Mental pain and suffering is a side effect of the physical pain and suffering. Again, this can be pain and suffering at the time of the accident, treatment after, and future predicted issues. These are the unseen injuries that can affect the victim as much as physical injuries. They can be notoriously hard to prove. Courts generally recognize the following as parts of mental pain and suffering:
- Mental anguish
- Emotional distress
- Loss of enjoyment in life
- Anxiety and depression
More severe mental pain and suffering can happen as a result of the accident. For example, getting into a car accident could cause you post-traumatic stress disorder (PTSD) every time you get in a car after the initial accident. These conditions tend to need long term care. Examples are chronic depression, mood functions, eating disorders, sleep disturbances or chronic fatigue.
Pain and suffering in Texas
Texas follows the clear and convincing standard in most personal injury cases. This standard is the amount and type of evidence that you will need to provide to prove to the judge or a jury. It is a high standard. The proof of your damages must be clear and you must be able to convince the court that the compensation you are requesting is related to injuries caused by the other party in the lawsuit.
There are several things you provide as evidence for your pain and suffering. The easiest way to start is by providing your own testimony. This can include your recollection of the accident as well as your account of what you suffered after. You will need to testify in a deposition. If the case goes to trial, you will also be questioned by the other party’s lawyer. You can also provide testimony from friends, family members, and experts. Finally, you can provide medical evidence such as bills and psychological assessments.
The statute of limitations is a cap on the time you have to file a case. For most personal injury claims in Texas, the statute of limitations is two years from the date the injury happened. There are some exceptions to this rule including the injured person is under age 18, they are of an unsound mind, the defendant left the state after the accident, or the injury is not discovered until a much later date. The latter of these happens frequently in medical malpractice claims.
Calculating pain and suffering in Texas
Texas rules allow a judge or jury to calculate pain and suffering in one of two ways. The first is the multiplier method. This is where the court adds your total amount of economic damages together. This includes medical bills, lost wages, and property damages. Then, this number is multiplied by a number between 1.5 and 5. This number represents the severity of your injuries. The multiplier number will be higher when your physical and mental pain and suffering are severe.
The second way to calculating pain and suffering in Texas is the per diem method. This calculates the daily amount of your physical and mental pain and suffering. Often, this amount is equal to what you were making during a day’s work. The payments continue until you are back to a maximum amount of medical improvement.
In general, the multiplier method is used for more severe and long-term injuries. Injuries that have a likely end date are calculated using the per diem method. There is no cap on most personal injury claims in Texas. A cap is a limit on the amount of money you can receive. In Texas, non-economic damages like physical or mental pain and suffering have no caps except in the case of medical malpractice. In those cases, you can only recover $250,000 per lawsuit. In all other cases, the amount to recover is limitless.