Definition of Pain and Suffering
When you are involved in an accident, you may have been injured. An injury may cause damages, which are split into economic and non economic damages. An economic damage, or special damage, is a calculable damage. Special damages include the amount of medical bills you have as a result of the accident and any loss of income you have as a result of the accident. This is a calculable damage because you can calculate or add the expense. For example, if your physician bill is $1,200 and your MRI bill was $2,000, you can calculate your medical expense damage to equal $3,200.
A non economic damage is a damage that is not calculable. In personal injury claims, the non economic damage an injured person has is generally known as pain and suffering damages. You can’t plug pain and suffering damages into a calculator. The pain and suffering damage one has is determined on a case by case basis. The value of the pain and suffering damages is the amount of money a jury would accept in exchange for having to endure that pain and suffering. For example, if your pain rates a 6/10 on a pain scale for 90 days, the amount of money a person would accept to go through that pain for that duration of time is the money value of your pain and suffering damages.
As per CACI jury instruction 3905A, pain and suffering damages include past and future physical pain, mental suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation and emotional distress.
How To Prove You Had Pain and Suffering
When you make an insurance claim against the person who negligently caused your injuries, their insurance company will request proof from you that you had pain and suffering. The first way to prove you had pain and suffering is to show the insurance adjuster your medical records for medical treatment you received because of the accident. The medical records will detail the subjective complaints you told your doctor on each of your medical appointments. It will detail your pain levels that you complained of, the effect your injuries had on your activities of daily living and your clinical examination findings.
Activities of daily living are defined as routine activities that people do every day. They include, but are not limited to, sleeping, walking, getting dressed, taking a bath, eating, working and driving. If you can show that your injury has affected your ability to perform any activities of daily living, then you can prove that you had pain and suffering because of the accident. Your injury may affect your activities of daily living in two ways. First, you may still perform certain activities of daily living, but not as well as before the accident. For example, you may still able to get dressed, but it may be more difficult because of the pain and discomfort you have.
The second way an injury can affect an activities of daily living is that you can’t perform certain activities at all. For example, you may not be able to exercise anymore because of your injury. Pain and suffering awards are higher for persons that can no longer perform activities of daily living compared to still being to perform activities of daily living, but with difficulty.
Aside from medical records, you can also prove that you had suffered pain and suffering because you missed certain social events or have not been able to experience the same quality of life did you had prior to the accident. For example, you may have missed important social events such as a wedding or graduation because of your injuries. Missing out on social events causes social distress and thus adds to your pain and suffering money damages.
It is difficult to remember dates of social events that you missed out on. Thus, I recommend you keep a journal and make an entry whenever you had an experience which caused you pain and suffering because of your injuries. You should date each journal entry so that you can be specific about when the loss of enjoyment of life occurred when negotiating your pain and suffering damages with the insurance adjuster.
Another way to prove you have pain and suffering due to an accident is by sharing MRI or X-ray results with the insurance adjuster. These are known as objective findings of injury. The MRI or X-ray may show a fracture, disc bulge and many other types of damages. This is the strongest evidence for pain and suffering because it can’t be contested by the insurance adjuster. The insurance adjuster may question your subjective complaints about your pain levels, but they can’t dispute any findings of injury on an MRI, CT Scan, X-ray or any other objective diagnostic test.
If your claim goes to trial, you can present witnesses to testify as to how your injuries affected your life. You may call family members, friends, coworkers, or other associates you have to talk about how you struggled, had pain and are not the same person as you were before the accident.
How An Insurance Adjuster Values Pain and Suffering
Insurance adjusters use the amount of medical bills and loss of earnings as a benchmark to make an offer for pain and suffering damages. They usually offer ½ to 1 times your economic damages (medical bills and loss of income) to compensate for your pain and suffering. For example, if your medical bills and loss of income equal $10,000, the insurance company will try to offer up to $5,000-$10,000 for your pain and suffering. If you try to settle your claim early, they usually will attempt to settle your pain and suffering damages for a few hundred dollars. This is not an appropriate way to determine the value of your personal injury claim. They plug your medical bills amount into a software, which gives them a value for your pain and suffering. Their software doesn’t fully take into account all of the factors of your pain and suffering values and shortchanges your pain and suffering value.
The Correct Way to Determine Pain and Suffering Damages
When someone gets involved in an accident, they first think about their well being and how this accident will affect their life. They are not immediately thinking about their medical bills. Thus, the value of pain and suffering damages exceeds the value of your economic damages (medical bills and loss of income). Someone might have a low medical bills amount, but missed out on a wedding and the value of that is priceless. The amount a jury finds they would accept to miss out on the wedding is the value of that portion of your total pain and suffering damages.
You are entitled to recover the pain and suffering damages for the past and future. Past pain and suffering is the determined from the time of your accident up to the time of your insurance settlement. If you have a permanent injury which will cause lifetime pain and suffering, then you will have future pain and suffering. The amount of future pain and suffering depends on the severity of your daily suffering and your life expectancy. By using the per diem approach, you determine a reasonable monetary value for you daily suffering and multiply that amount by your life expectancy.
For example, if you have a permanent back injury which requires you to change careers and your lifestyle, you may calculate that daily monetary value of that suffering. To illustrate this example, we will use $50 as your daily pain and suffering amount. You can use a life expectancy table which you can find online to determine your life expectancy. If your life expectancy is 25 years, you multiply the $50 by the 25 years. Twenty five years is equal to 9,125 days (365 X 25). By multiply 9,125 by $50 daily dollars, your future pain and suffering damages may be equal to $456,250.00. The total potential case value would be the $456,250.00 plus your past and future economic damages.
The daily monetary value of your lifetime pain and suffering varies wildly depending on your permanent injury or disfigurement. A person with a permanent amputation would generally have more daily pain and suffering than a person with a permanent shoulder injury. In the example, the daily $50 pain and suffering amount could increase or decrease, depending on your injury. Your lawyer will help you determine which daily monetary value is appropriate if you have a permanent injury with lifetime pain and suffering.
In order to prove you have a permanent injury, you would need to have expert medical professionals testify at trial. They would have to determine that it is more likely than not that you will have a permanent injury based on their physical examinations and review of your medical records.
How Insurance Adjusters Respond to Lifetime Pain and Suffering Requests
An insurance adjuster is paid to settle your claim for the least amount of money possible. When insurance adjusters call, they are friendly and courteous, but they don’t have your best interest in mind. Insurance companies for third parties serve their employer (the insurance company) first. You may have a permanent injury such as a disc bulge in your back which requires surgery. They will hire medical professionals to testify on their behalf to argue that your back injuries pre-dated the accident. They will most often point to “degenerative changes” in your spine and point to that as the reason for your surgery. You would have to have a battle of the experts in court to prove that the accident caused your surgery and not any pre-existing conditions.
Even if you did have pre-existing injuries, you can get paid for the accident’s aggravation of those injuries. You are entitled to the pain and suffering damages you had due to the accident. For example, maybe you had a prior knee injury, but before the accident you were asymptomatic. After the accident, your knee struck the interior of the car and tore your meniscus. The accident caused the tear of your meniscus, the surgery and any potential permanent injury from the torn meniscus. You are entitled to the pain and suffering damages for the aggravation of that pre-existing injury. If the accident never occurred, you likely wouldn’t have had the torn meniscus or needed the surgery.
Advice on Negotiating Pain and Suffering Damages
It is important to consult with a personal injury attorney to handle and/or negotiate the pain and suffering damages portion of your case. If you demand a small amount for the pain and suffering damages, you may anchor the pain and suffering negotiation with your small figure and it would make an attorney’s job in getting out of that settlement range and negotiating a fair pain and suffering amount more difficult.
If you have any questions regarding the pain and suffering damages you endured from a car accident or any other personal injury, our Long Beach Personal Injury Lawyer provides free consultations.