Brian White | October 19, 2020 | Houston Personal Injury Attorney
How do you place a value on the pain and suffering caused by a negligent driver or a medical error? Is there enough money to compensate an accident victim for the suffering caused by an injury that was not the victim’s fault? The answer is no, but a monetary award is the only way the judicial system has of compensating victims for pain and suffering damages.
What are Pain and Suffering Damages?
When you sustain injuries because of a car accident, defective product, slip and fall accident, or other negligence, you sustain various damages. Damages in a personal injury claim fall into two categories —economic damages (special damages) and non-economic damages (general damages).
Economic damages are your financial losses related to the accident and your injuries. Examples of financial losses include:
- The present cost of medical bills and lost wages
- Future medical expenses
- In-home health care and personal care costs
- Physical, vocational, occupational, and rehabilitative therapy
- Mental health counseling
- Damage to personal property
The value of economic damages is the total of the actual cost for each expense.
Non-economic damages are the “pain and suffering” you experience because of the accident and your injuries. These damages do not have a bill or invoice to tell us what they are worth. Their value is subjective because each case and person is unique.
Examples of pain and suffering damages include:
- Psychological damages, including anxiety, depression, and Post-Traumatic Stress Disorder
- Emotional distress
- Loss of companionship, love, and affection
- Physical pain and suffering
- Mental anguish
- Loss of quality of life
- Scarring and disfigurement
- Loss of enjoyment of life
- Disabilities and permanent impairments
Valuing non-economic damages in a personal injury claim begins by analyzing the factors that could impact the severity of pain and suffering damages.
What Factors Could Affect the Value of an Award For Pain and Suffering Damages?
Because there is no “bill” for pain and suffering, the factors that could impact the level of suffering are analyzed. Even though each case is different, certain factors assist the parties in evaluating pain and suffering damages.
Factors used when valuing pain and suffering damages include:
- The type of injuries sustained by the victim
- The severity of the injuries
- Whether the person sustained an impairment, disfigurement, or disability
- The length of the recovery period
- Whether the person required surgery and follow up therapy
- The total of the financial losses incurred by the victim
- Whether the person contributed to the cause of the injury
Each of the above factors has a specific impact on the value of pain and suffering damages. For instance, cases involving catastrophic injuries and permanent disabilities increase the value of the claim. A case involving a spinal cord injury that results in paralysis is generally worth more than a case involving a broken bone.
The value of pain and suffering would be higher if the victim required multiple surgeries and months of physical therapy. It is assumed that with each surgery, the victim suffered physical and emotional pain. Months of physical therapy are also assumed to be physically uncomfortable and emotionally distressing.
The longer the person takes to recover, the more pain and suffering the person has to endure. Enjoyment of life decreases the longer it takes to recover from an accident. Also, the person’s quality of life diminishes when there is a permanent impairment.
There are many assumptions made when valuing pain and suffering damages. Most assumptions are based on what jurors believe would be reasonable, given the above factors.
How Do Financial Losses Impact the Calculations for Pain and Suffering?
The Texas statutes do not provide a standard formula for calculating damages for pain and suffering. Therefore, many insurance companies, lawyers, and juries use the multiplier method for determining how much money a victim should receive for pain and suffering. The total of your financial losses is a component used in the multiplier method.
A multiplier is assigned based on the factors in the case. The multiplier is generally a number between 1.5 and five. Cases involving permanent disabilities, traumatic injuries, and long recoveries generally receive higher multipliers.
For example, a construction accident case involving the loss of a limb because of a heavy equipment accident might have a multiplier of five. On the other hand, a bicycle accident that results in no broken bones and only minor injuries might have a multiplier of 1.5 or two.
Pain and suffering damages equal the financial losses multiplied by the multiplier. If the multiplier for your motorcycle accident is four and your financial damages total $100,000, your pain and suffering damages would equal $400,000.
Insurance companies and attorneys negotiate the multiplier during the settlement process. Your lawyer argues for the highest multiplier, while the insurance company argues for the lowest multiplier. If your personal injury case goes to trial, the jury decides whether to use the multiplier method and assigns the multiplier used to calculate pain and suffering damages.
Is There Another Way to Calculate the Value of a Pain and Suffering Claim?
Yes, some parties and juries use a per diem method to determine the value of non-economic damages. However, the per diem method is more suited to cases that do not involve traumatic injuries or permanent disabilities.
A per diem is a daily value assigned for pain and suffering. The same factors used to calculate a multiplier are used to calculate the per diem. The per diem is multiplied by the number of days the victim spent recovering from accident injuries.
For example, your doctor released you from treatment 120 days after an auto accident. You did not sustain any permanent impairments from the accident. The agreed-upon per diem for your claim is $200.
Your damages for pain and suffering would equal $24,000 (120 x $200). As with the multiplier method, the per diem method is subjective and includes assumptions about how the average person suffers given the facts of the case.
How Does Liability Impact Pain and Suffering Damages?
A victim cannot recover compensation for damages if the victim’s percentage of liability is greater than 50 percent under Texas comparative fault laws. However, if your percentage of fault is less than 50 percent, you can recover compensation for damages, including pain and suffering damages, but the compensation is reduced by your percentage of fault.
Let’s assume that a jury finds you are 30 percent at fault for the cause of your accident. If your damages total $200,000, the most you can receive for your claim is $170,000. The total damages are reduced by 30 percent.
If the insurance company or the other party alleges that you are partially to blame for causing the accident or your injury, contact a personal injury lawyer immediately. You could lose your right to pursue an injury claim or lose substantial compensation.
Pain and Suffering Damages Are Challenging to Value
An experienced personal injury lawyer understands the complexities of placing a value on a person’s pain and suffering. Without an attorney to advise you about your rights and the factors of your case that impact pain and suffering damages, you could receive far less than you deserve for an injury claim.
Do not let the insurance adjuster take advantage of your lack of experience or knowledge about personal injury laws. Talk with a lawyer before you agree to a settlement to ensure you receive the full value for all damages caused by an accident.