How Are Pain and Suffering Damages Calculated?
When someone else’s negligence or intentional wrongdoing causes you injury, you are entitled to be made whole again by filing a personal injury claim. The damages you can recover from the at-fault party are broken down into two broad groups: economic damages (special damages) and non-economic damages (or general damages). The latter group includes losses you suffered that have no intrinsic financial value, like pain and suffering.
It’s impossible to put a value on the physical and emotional pain and suffering of a serious accident. However, assigning some monetary value is the only way to compensate you for these irreversible harms you suffered.
So, how do insurance companies and injury lawyers calculate the value of pain and suffering? The answer is complicated as there are many ways to reach a value, and it usually involves a lot of negotiation.
Table of Contents
- What Are Pain and Suffering Damages?
- How Are Pain and Suffering Damages Calculated?
- How Do You Prove Pain and Suffering?
- Can I Still Recover Compensation for Pain and Suffering if I Was Partially at Fault?
- Schedule a Consultation With an Undefeated Houston Personal Injury Attorney
What Are Pain and Suffering Damages?
Special or economic damages include your financial losses like lost wages and medical bills. General or non-economic damages cover all the other psychological, emotional, and physical damages you sustained in an accident. These damages are very subjective and have no intrinsic value.
Pain and suffering doesn’t just include the pain and turmoil you have already experienced; it also includes anticipated future suffering, pain, and hardship. In cases involving serious or permanent injuries, pain and suffering damages can even exceed the value of the economic damages.
Pain and suffering damages can be divided into a few different types.
Physical Pain and Suffering
The physical injuries you suffer in an accident can be debilitating and incredibly painful, with a long recovery period that may last weeks or even years. Many accident victims are left with chronic or constant pain, permanent impairment or disability, and the need for ongoing invasive or painful medical treatment.
Many types of physical injuries and ongoing pain can qualify for pain and suffering compensation, such as:
- Traumatic brain injuries
- Neck pain
- Back pain
- Fractured bones
- Organ damage
- Paralysis
- Nerve damage
- Traumatic amputation
- Burns
- Chronic headaches
The type and severity of injuries you sustained and whether your physical pain is likely to be ongoing are factors that influence the compensation you can recover.
Emotional and Psychological Pain and Suffering
The psychological and emotional distress and suffering of a serious injury can be devastating. Many victims experience a great deal of emotional turmoil, especially when an accident leaves them with permanent impairment and they can no longer live life the same way.
Emotional pain and suffering can include many consequences of your injuries, such as:
- Anxiety
- Depression
- Fear
- Anger
- Embarrassment
- Insomnia
- Post-traumatic stress disorder (PTSD)
- Emotional distress
- Mental anguish
- Loss of quality of life
- Disfigurement and scarring
- Hardship and inconvenience
- Cognitive changes or impairment from a brain injury
While it may be difficult to talk about these effects of your injuries, it may be important to demonstrate the true burden and impact on your life.
Loss of Consortium
Texas law recognizes that a serious accident can have a major effect on more than a single victim. When someone you love suffers a serious injury or death, you can recover damages through a loss of consortium claim.
This type of pain and suffering is different than the damages recovered by a victim in a personal injury case. It’s available to family members, including spouses, children, and parents, after a serious injury or wrongful death deprives you of your loved one’s companionship, affection, and support.
How Are Pain and Suffering Damages Calculated?
Determining the value of pain and suffering is complicated. Injury lawyers and insurance companies may use a formula or pain and suffering calculator to give them an idea of where to start negotiations.
One common method used is the multiplier method. Your economic damages are multiplied by a factor of 1.5 to 5 depending on the severity of your injuries and other factors.
To calculate a fair amount, many factors may be considered:
- Was the defendant’s behavior egregious, reckless, or intentional?
- What is the liability of each party?
- What type of injuries were suffered?
- What was your life like before the accident?
- What is the effect of your injuries on your daily life?
- Are you likely to have significant and permanent effects of your injury?
Another method that may be used is the per diem or “per day” method. A dollar amount is paid for every day from the time of your accident until you reach maximum medical improvement. This method is rarely used for traumatic or catastrophic injuries.
Remember that any method used will just be a starting point. Negotiations may go back and forth to reach a settlement amount both parties consider fair. If a settlement can’t be reached, your case will need to go to court and possibly to trial. If your case does make it all the way to trial (which is very rare), damages can be more unpredictable and even depend on how sympathetic you appear to jurors and how the jury feels about the defendant’s behavior.
Generally, there is no limit to the amount you can recover for pain and suffering in a personal injury case. However, there are caps on cases against a government entity or medical malpractice. In these cases, you will not be able to recover more than the cap, no matter the value of your damages.
The value of your case can also be limited by the defendant’s insurance policy limits and/or assets available to pay for a jury award.
How Do You Prove Pain and Suffering?
The insurance company will try to minimize the severity of your injuries and the effects on your daily life. There are many forms of evidence that can be presented to the insurance company, judge, or jury to substantiate the pain and suffering you have experienced.
Here are some ways to prove physical and emotional pain:
- Records of physical therapy, psychological treatment, and counseling
- Pictures and videos of the injuries
- A journal documenting daily pain, your emotional state, and struggles you experience
- Testimony from family, friends, neighbors, or coworkers about changes they have observed in your behavior, mood, perceived psychological state and pain, and ability to perform certain tasks, hobbies, or activities
Your personal injury lawyer will help you gather evidence that documents the losses you have suffered. Your lawyer will also give you advice on actions to take or avoid to protect your claim. This includes following all doctor recommendations, completing treatment, and being careful about social media posts.
It can be easy for pictures or posts on social media to be misconstrued, especially by an insurance company looking for evidence you are exaggerating. Trying to be positive in a post or sharing a picture of you engaging in a fun activity can harm your case. These posts can be used against you and harm your credibility.
Can I Still Recover Compensation for Pain and Suffering if I Was Partially at Fault?
Texas uses a modified comparative negligence rule with a 51% bar to assign liability for damages from an accident. Under this rule, you can still recover compensation if you are found less than 51% at fault for the accident or your own damages. The amount you recover will be reduced proportionate to your share of liability.
For example, if you suffered $150,000 in damages but are found 40% at fault, your recovery will be reduced by 40% ($60,000) to $90,000.
If you are found 51% or more at fault, you will be barred from recovering compensation for your injuries.
Because every share of fault that can be assigned to you directly reduces what the other party must pay, their insurance company will likely try to shift blame to you. An experienced personal injury lawyer will fight back against these attempts and gather as much evidence as possible to prove liability.
Schedule a Consultation With an Undefeated Houston Personal Injury Attorney
Recovering fair compensation after a serious accident can be challenging without an experienced personal injury lawyer. Insurance companies are eager to downplay the harm you suffered and make lowball offers that may not even cover your future financial losses, let alone significant pain and suffering.
If you have been seriously hurt in an accident, contact a Houston personal injury attorney at Zehl & Associates can fight for you. Schedule a free case review today to discuss the details of your accident and explore your legal options. You can call us at (888) 603-3636.