Suing for Pain and Suffering? 5 Things You Need to Know
In high-profile personal injury cases, pain and suffering typically accounts for a large percentage of the settlement award. Recovering from an injury can undoubtedly be a long and painful process. In some cases, the emotional distress can be more painful and debilitating than the physical injury.
Seeking compensation for your suffering is not unreasonable, but this area of recovery isn’t as black and white as others.
If you plan to include pain and suffering in your personal injury claim, there are a few things you should know.
1. Hiring a Lawyer Will Improve Your Chances of Success
Personal injury cases of any kind are complex, but adding in pain and suffering – which is subjective – complicates matters even further. Some personal injury cases also go to trial, and you may not get the outcome you want if you represent yourself.
Hiring a skilled and experienced lawyer to take on your case will increase your chances of success.
A lawyer will also help you calculate pain and suffering damages properly, so you get a fair settlement.
Whether you were injured in a car accident or bit by the neighborhood dog, it’s typically in your best interest to hire a lawyer when filing a claim.
2. Calculating Pain and Suffering Can Be Complex
It’s difficult to put a value on a person’s mental and emotional well-being because it’s purely subjective. Two people can be involved in the same accident and suffer the same injuries, but one person may suffer more emotional trauma than the other.
Examples of pain and suffering include:
- PTSD (post-traumatic stress disorder)
- Loss of appetite
- Sexual dysfunction
In some cases, these conditions require both medication and counseling over the long-term.
Emotional injuries are far less black and white than physical injuries, but attorneys and insurance companies have their own methods for calculating pain and suffering damages.
Insurance companies typically use computer programs to determine how much a claimant should receive for pain and suffering. These programs will consider, among many other factors, the following economic damages:
- Cost of medical treatment
- Lost wages
- Property damage
Once the economic damages have been calculated, a multiplier (between 1.5 and 5) will be used to determine your pain and suffering. The more severe the injury, the higher the multiplier.
Let’s say you accumulate $8,000 in medical bills for your injuries. That number may be multiplied by three, which would value your pain and suffering at $24,000.
While the multiplier method is common, insurers are not obligated to calculate your settlement this way. They may use their own method to determine the value of your pain and suffering.
Insurers will also consider other factors that you may not consider. Injuries treated by a specialist, for example, are likely to be considered more serious than injuries treated by a chiropractor.
Insurance companies may also say, “Hey, you didn’t really need that last appointment with your doctor, so we’re going to remove that from the treatment timeline.”
The entire process of calculating pain and suffering is complicated, and is best handled by an experienced professional.
3. Insurance Companies Will Try to Low-Ball You
Insurance companies are just like any other business – they have a bottom line to protect. It’s rare for insurers to offer a fair settlement without at least a little negotiation.
It’s in the insurer’s best interest to try and convince you that their low-ball settlement offer is fair. The insurance company is not on your side, so go into this process with that in mind.
Insurance companies do recognize that when their party is at fault, the injured party does deserve some compensation for their pain and suffering. But they typically try to offer a very low figure at first to see if the injured party will take it and walk away.
4. Some States Have Limits on Pain and Suffering Damages
Some states have laws that limit pain and suffering damages, but most do not. It’s also important to note that there are no federal limits on this type of recovery.
States that do have caps on pain and suffering compensatory damages include:
- California: $250,000
- New Hampshire: $875,000
- Ohio: $250,000
- Maryland: $350,000
These limits typically only apply to products liability and medical malpractice cases.
Many states also give you the option to choose between limited tort and full tort auto insurance policies. Choosing limited tort will save you money on your monthly premiums, but by choosing this option, you waive your right to sue for pain and suffering. In this case, you would not be able to include pain and suffering in your claim.
5. Proving Pain and Suffering is Challenging
Pain and suffering is subjective. You can’t measure mental anguish, and it generally does not exhibit physical symptoms. Physical pain is subjective for the very same reasons.
Proving pain and suffering can be a serious challenge. How do you prove the existence and the degree of trauma or pain to a jury?
While not as concrete as a physical injury, there are ways to support pain and suffering claims. These include:
- Diaries and journals kept by the victim, which document pain levels, trauma, anxiety and/or other related injuries.
- Testimonies of family and friends, which can attest to the effects of the injury on the victim’s life.
- Written report and/or testimony from a psychologist or counselor who treated the victim.
Testimony is often the most effective way to prove pain and suffering, especially if a psychologist is willing to testify.
Insurance companies will do their best to rebut these sources. For example, they may use photo and text updates on Facebook to prove that the victim was still out enjoying life, despite his or her claim. They may also call on their own experts to refute claims made by the plaintiff.
Proving pain and suffering is by no means an easy task, but it can be done. High-dollar settlements often include a fair amount of compensation for emotional trauma and physical pain. The key to getting the compensation you deserve is finding an attorney with the experience and aggressive approach needed to fight for the settlement you deserve.
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