What exactly is “pain and suffering”? How do you prove the extent of your pain and suffering? How do you put a dollar value on something that cannot be readily quantified?
Download The eBook Instantly
Get these useful resources from McKay Law on the go. Leave us your email and we will instantly send out the download link.
If you are injured due to the carelessness of another person, you may be entitled to compensation for the harm done to you. The law calls this compensation “damages.” Personal injury damages include compensation for your economic losses (i.e., medical expenses, lost wages, property damage, miscellaneous out-of-pocket expenses), as well as your non-economic losses, including your pain and suffering.
This booklet answers those questions and offers practical suggestions to help you maximize the value of your pain and suffering damages.
What Is “Pain and Suffering”?
Broadly speaking, the phrase “pain and suffering” means physical pain and discomfort, as well as mental suffering and emotional distress, caused by a personal injury accident. More specifically, personal injury damages for pain and suffering may include compensation for:
- Physical pain
- Mental suffering
- Physical impairment
- Emotional distress
- Loss of enjoyment of life
- Loss of quality of life
- Sexual dysfunction
How Do You Prove the Extent of Your Pain and Suffering?
Claims Adjusters and Jurors will be Skeptical
The main challenge in proving pain and suffering is that it’s subjective. Each person’s experience with pain and suffering is unique. This holds true for both the person who is injured and the person who is evaluating a claim for pain and suffering (i.e., the insurance claims adjuster and/or a group of jurors). For example, you might consider a broken bone to be a high-pain event (e.g., pain level 8). Someone else might consider that same injury to be a pain level 4.
Similarly, after a car accident, you might experience panic attacks when you get behind the wheel. Someone else might feel mild anxiety and still another person might not give it a second thought. Lingering pain may leave you too depressed to get out of bed and go to work, while another person may take comfort in the “routine” of work and find it to be healing.
The main challenge in proving pain and suffering is that it’s subjective. Each person’s experience with pain and suffering is unique.
All of these experiences are valid, but the subjective nature of pain will impact the value of your personal injury claim. More specifically, claims adjusters (and many jurors) will be skeptical of your claim of pain and suffering and your demand for compensation. Some jurors may dismiss you as a “whiner.” Even worse, the claims adjuster and/or the defense attorney may accuse you of “malingering” – exaggerating or faking your symptoms for financial gain.
So, how do you overcome this hurdle? With objective evidence that supports your subjective claims of pain and suffering.
Use Objective Evidence to Prove Subjective Pain and Suffering
Objective evidence includes:
Your Medical Records
Your medical records will be the strongest objective evidence of your pain and suffering. “Medical records” include:
- EMT records. What time did emergency personnel arrive at the scene? How much time passed after the accident until you first received treatment?
- Emergency room records. What did you say to the ER physician? Were you in shock when you arrived? Were you given pain medication right away?
- Clinical records from your visits with your doctor, including the notes made by doctors and nurses. Even notes made by the front office staff can be evidence of pain and suffering (e.g., if you called several times over the course of a week asking for an appointment or an adjustment to your medications to help alleviate your pain).
- Imaging results. Does an X-ray show a compound fracture of your arm? That image will be strong evidence of pain and suffering.
- Mental health treatment records. Some accidents are so traumatic that a person may suffer lingering effects, such as PTSD, depression, or anxiety. Records from a psychiatrist, psychologist, therapist, or counselor can help to show how the accident resulted in mental and emotional suffering.
- Medication records. Were you prescribed pain medications (narcotics), pain relievers, or anti-inflammatory medications? How long did you require medication to manage your pain?
- A statement from your treating doctor and/or a pain specialist can be very persuasive.
Photographs and Videos
A picture is worth a thousand words. Photos and videos of the accident scene, your injuries, your treatment and the progress of your recovery can be powerful evidence of the pain and suffering you have endured.
This might include statements from witnesses at the scene of the accident. This type of evidence also can include the statements/observations of persons close to you – your spouse, family members, friends, neighbors, and coworkers – who can testify about their observations of your pain and suffering.
The testimony of these individuals can be powerful if they are able to paint a “before and after” picture of the impact of your pain and suffering on your daily life and your relationships.
How Pain and Suffering Is Calculated
There is no single way to determine the monetary value of pain and suffering. Common methods used by insurance claims adjusters to calculate pain and suffering damages include:
Per Diem Method
The per diem method is fairly straightforward. It assigns a certain dollar amount for each day of pain or suffering you have endured. For example, if the claims adjuster sets a daily rate of $100, and you suffered for 30 days, the pain and suffering portion of your damages would be $3,000.
The multiplier method takes your economic damages (medical expenses, lost wages, etc.) and multiplies them by a variable, usually between 1 and 5, to get your pain and suffering damages. For example, if your economic losses total $10,000 and a variable of 3 is used, your pain and suffering would be valued at $30,000.
The variable used will depend on a number of factors. For example, the insurance company might use a higher vari- able like 3, 4, or 5 if:
- You would make a compelling witness at trial;
- Your injuries are severe;
- The treatment for your injuries was invasive;
- The side-effects of your treatment/medications are severe;
- Lengthy treatment is required;
- You suffered a permanent disability because of the accident;
- Liability (fault for the accident) is clear and one-sided;
- You have objective, verifiable proof of your injuries;
- Your injuries have had a significant impact on your daily life;
- It is likely that you will live with pain or other consequences in the future due to the injuries sustained in the accident.
Some reasons to use a lower variable might include:
- You were partially at fault for the accident;
- Your injuries were minor;
- Your recovery time was short;
- The claims adjuster thinks you are not credible; or
- There is limited objective proof of your injuries.
Some insurance adjusters may use the multiplier method to get a general estimate of your pain and suffering damages and then make further adjustments.
Insurance Settlement Software
Some insurance companies rely on a computer program (most commonly, a program called Colossus) to calculate the settlement value of a personal injury claim. It works like this: The claims adjuster inserts “relevant” data into the program, and the program spits out a report predicting the settlement value of the claim. Factors that these programs consider relevant include, among other things:
- Where the accident occurred;
- The value of similar claims involving similar injuries;
- The type of doctor or specialist who treated your injuries;
- The length of your treatment; and
- Jury awards in the same jurisdiction based on similar claims.
As you might imagine, these programs typically spit out very low valuations, in part because they do not value intangi- bles, like stress, anxiety, loss of enjoyment of life and all the other difficult-to-calculate factors that make up a person’s pain and suffering. Essentially, the problem with Colossus and similar programs is that they cannot take the place of human beings’ understanding of human suffering.
Other Factors That May Limit Pain and Suffering Damages
The settlement value of your claim may be capped at the defendant’s insurance policy limits. So, for example, if the insurance policy limits are $100,000 and your other damages totaled $90,000, then the most you may be able to get for your pain and suffering would be $10,000.
Some states have placed a “cap” on non-economic damages. If your case goes to trial, the cap sets the maximum amount that can be awarded for pain and suffering damages. If a jury awards more than the cap amount, the judge simply reduces the amount awarded to meet the cap.
Practical Steps You Can Take To Bolster Your Claim of Pain and Suffering
Here are a few practical steps you can take to help ensure that you obtain fair compensation for your pain and suffering:
Seek Regular and Consistent Medical Treatment
As noted above, your medical records will play a pivotal role in your accident case, so it is vital that you seek regular and consistent medical treatment to create a clear record of your injuries and your recovery. Keep your appointments with your doctor, follow your doctor’s orders, and continue treatment until your doctor releases you.
If you are referred to a specialist, make sure you follow through. If you are hit-and-miss about keeping your appointments, or if you stop treatment altogether, the claims adjuster (and, likely, the jurors) will wonder, “If you didn’t need to see a doctor, how much pain and suffering were you really enduring?”
Be Open and Honest with Your Doctors
If you are in pain, speak up. If your pain medication is causing debilitating side-effects, speak up. If you hold back or suffer in silence because you “don’t like to complain,” your medical records will not accurately reflect the extent of your pain and suffering.
Don’t Shy Away From Mental Healthcare
If you are feeling anxious or depressed or otherwise struggling mentally or emotionally after your injury accident, seek help from a licensed mental health care professional. Mental and emotional injuries are real and require treatment, just like physical injuries. Plus, a record of mental health treatment will give added credence to your claim of pain and suffering.
Keep a Pain Journal
A pain journal is a written record of the pain (and other symptoms) you are experiencing as a result of your injuries. A pain journal can take many forms: a handwritten diary; a computer log; a spreadsheet; or even a large desk calendar, with detailed notes. Pick any form that works for you and follow these guidelines:
Use your own words.
- Be diligent. Make regular entries in your pain journal.
- Be honest. Don’t exaggerate or minimize your pain or other symptoms. If you had a good day, say so.
- Be specific in describing your pain and other symptoms and the impact of your pain/symptoms on your daily life. For example, you might give yourself a pain score, on a scale of 1-10, and then describe, in detail, why you gave that score. Another approach might be to describe your day, from the moment you awoke to the moment you went to bed for the night, with examples of how your pain impacted your activities. Pay attention toyour mental and emotional state, and be sure to describe that aspect of your daily life as well.
A pain journal is a powerful tool in proving the nature and extent of your pain and suffering because it is a contemporaneous record of the impact of your injuries on your daily life, over an extended period of time. Given that it may take several months or even years to resolve your personal injury claim, your pain journal will be important in helping you to give detailed testimony about your experience.
Ask a Family Member to Keep a Journal of How Your Injuries Affect Your Daily Life
You can also ask a family member who lives with you to keep a journal of how your injuries have affected you and your family. For example, you may have been the primary caregiver and now your child has to go to daycare, causing both of you distress. Pain may keep you up at night, causing you to be irritable during the day and to lash out at your family. Y
our physical pain or anxiety or depression or other injuries may be causing changes in your behavior that you are not even aware of. A family member’s journal can serve to support and complement your own pain journal.
Chronicle Your Life In Photos
Since it may be a long time before your case is settled or you appear in front of a jury, it is important that you photo- graph your injuries and the progress of your recovery. A “day in the life’ video also can be persuasive evidence of your pain and suffering.
Consult a Personal Injury Lawyer
You can, of course, try to settle your personal injury claim on your own, but you are more likely to receive full and fair compensation for the harm you have suffered if you enlist the help of an experienced personal injury lawyer. This is especially true with regard to compensation for your pain and suffering. Insurance claims adjusters are experienced and well-trained negotiators, who will employ a number of different tactics to wear you down, stall and otherwise diminish the value of your claim.
An experienced personal injury lawyer will not be intimidated. Your lawyer will put together a persuasive settlement demand, supported by objective medical evidence. Then, if the insurance company refuses to make a fair offer, your lawyer can take your case to a jury.
Get a Free Case Consultation
Before you negotiate or sign anything, learn your rights and how to protect yourself and your family. A personal injury lawyer can talk to you about your legal options, how to avoid common mistakes, and how to maximize your claim.