What Do Courts Consider When Determining Damages for Pain and Suffering?

If an accident harms you, you must provide as much evidence about your losses. This includes any documented financial losses. When it comes to an award of pain and suffering, the judge may instruct the jury to consider the following factors when determining how much compensation you should receive. The Severity of Your Injuries The severity of your injuries is usually a significant factor in determining pain and suffering. For example, if you shattered your leg in an accident, it will almost certainly require many surgeries and rehab to treat. You may have to learn to walk again and suffer ongoing pain. That is much different than a simple fracture, for example. While breaking a bone is still very painful and deserves compensation, the court will almost certainly consider the extent of your injuries when determining damages for pain and suffering. Limitation on Daily Activities Another factor that the court will likely consider is whether your injuries result in any limitation on your day-to-day life. For example, if you suffered a spinal cord injury and paralysis, you may not do any physical activities you once enjoyed. That said, the limitations on your activities do not need to be as dramatic as paralysis to recover damages for pain and suffering. Any limitations on what you can do may entitle you to compensation. Your Suffering Pain and suffering, though often used interchangeably, are distinct factors with important differences. Never underestimate the significance of suffering. Let's confront the reality: Any form of injury disrupts your ability to live life on your own terms. If someone else causes that injury, they should compensate you for your losses. When courts consider suffering, they carefully examine several key aspects: Past suffering: This encompasses the experiences you went through during and immediately after the incident. It acknowledges the emotional and physical turmoil you endured in the aftermath. Current suffering: It takes into account the ongoing consequences you face because of the incident. This includes any ongoing pain, distress, or limitations you may be experiencing in your daily life. Future suffering: Anticipating the potential suffering that lies ahead based on the limitations imposed by the incident is an arduous task. While the future remains uncertain, you must consider the long-term effects this event may have on your well-being. These factors are far from straightforward to assess. Predicting the future presents inherent challenges, and knowing with certainty what lies ahead is impossible. Nevertheless, you need to contemplate the impact of this event and the potential implications it may hold for your future. Your Emotional Distress When courts determine damages for pain and suffering, they often consider emotional distress a significant factor. Emotional distress is the psychological and emotional harm an individual suffers due to a wrongful act or negligence. Courts recognize that emotional distress can profoundly affect a person's well-being and quality of life. To determine damages for emotional distress, courts typically consider several factors. These may include: the severity and duration of the distress the extent of any physical injuries or harm caused Courts aim to provide fair compensation, taking into account the individual circumstances of the case. While it is challenging to quantify emotional distress in monetary terms, courts may consider awards in line with similar cases, considering precedent and legal guidelines. Your Age How can age play a role in your personal injury claims? Consider that if you are young, you have a much longer potential life ahead of you. That may mean that the medical care you need – if you need it – may need to extend longer than someone much older. At the same time, if you are older and suffering a life-changing incident with little chance of improvement, the rest of your life may be limited due to someone else's actions. This reality must be a consideration when determining the pain and suffering that you may have in the years to come. Whether You Have any Pre-Existing Conditions When determining damages for pain and suffering, courts may consider your pre-existing conditions as a factor affecting your compensation. A pre-existing condition refers to a medical or psychological condition that existed before the incident or injury for which you seek compensation. Courts recognize that pre-existing conditions can complicate the assessment of damages for pain and suffering. They may consider whether the pre-existing condition was aggravated or exacerbated by the incident in question. The court may award damages if the incident worsened your pre-existing condition or caused additional pain and suffering. However, courts also consider the principle of the eggshell skull or thin-skull rule. This means that even if you had a pre-existing condition that made you more susceptible to injury or suffering, you can still hold the defendant responsible for the harm they caused. Under this rule, defendants should take a plaintiff as they find them, regardless of any pre-existing conditions. Ultimately, the court aims to assess fair and just damages, considering the case's specific circumstances, including any pre-existing conditions and their effect on pain and suffering.

How Do Insurance Companies Determine Pain and Suffering?

While it is certainly important to understand how a judge or jury may determine your pain and suffering damages, you should keep in mind that most personal injury cases resolve by reaching a settlement with the at-fault party’s insurance company. In a settlement, both parties agree on how much the case is worth. If you accept a settlement, you will receive a payment (or a set of payments) in return for releasing the at-fault party from further liability. In some cases, the insurance company may use a formula to arrive at your non-economic damages that involves multiplying your economic damages by a specific multiplier. The multiplier used will depend on the clarity of the other party’s fault, the strength of your medical evidence, the nature and severity of your injuries, and your prognosis. An experienced attorney can work to get you the highest multiplier applied to your case. In other cases, your lawyer and the insurance company may agree on a per diem calculation for pain and suffering damages. Per diem is Latin for “per day,” and a per diem arrangement simply means that the insurance company agrees to pay you a certain amount for each day you had to live with the pain and suffering caused by your injuries.

Are there Caps on Damages for Pain and Suffering?

Your state may caps on damages for pain and suffering. For example, Florida does not cap non-economic damages, so it does not limit the amount of compensation you can recover for pain and suffering after an accident.

What Evidence Can Prove Pain and Suffering Claims?

In legal proceedings, proving pain and suffering is a crucial aspect of seeking compensation for the physical and emotional harm caused by an incident. To establish the existence and impact of pain and suffering, your lawyer can present various types of evidence in court. From medical records and expert testimony to witness statements and personal diaries, each piece of evidence plays a vital role in providing a comprehensive and compelling account of your suffering. Your Medical Records Your medical records can prove valuable in showing how an injury has affected your life. Your lawyer can use them to establish the severity of your injuries, show how painful they were, and establish any long-term problems your injuries will continue to create in your life. Expert Testimony Expert testimony often holds significant weight in proving pain and suffering in legal proceedings. Medical professionals, psychologists, and other experts can provide specialized knowledge and insights into the physical and emotional aspects of your condition. Their testimony can establish a link between the incident and the resulting pain and suffering, detailing the extent and impact of the injuries or trauma. These experts may analyze medical records, conduct evaluations, and offer professional opinions regarding the plaintiff's condition and prognosis. Their expertise and credibility contribute to a comprehensive understanding of your pain and suffering, aiding the court in assessing appropriate damages. Testimony from other people Your doctor may offer some guidance here, but often it is the influence of people in your life every day that can help you demonstrate the impact of this incident. For example, your family members can speak about how you spent your time and the type of personality you had before the accident. They can provide complete insight into who you once were. They can also document what happened after the incident. What changed? Why did it change? How did that impact you and them? You want more than one person to provide this information as that can help to solidify the information about your case. Your accident attorneys will work with you to help you to determine who can help, whether your employer, friends, family, doctor, or others. Keeping a Diary After an accident, it is a good idea to keep a diary about how your injuries are affecting you on a day-to-day basis. You may even want to keep a video diary for maximum impact. These records can help illustrate how your daily life changed and how your injuries affect you. A log may also document the changes in your care over time, your daily emotional turmoil, and your overall pain. Keep it honest and as open as possible.

How Is Pain and Suffering Calculated?

Steven A. Bagen | April 2, 2025 | Personal Injury

Pain and suffering is generally calculated through one of two methods: The per-diem method and the multiplier method. Your attorney will determine which method is most appropriate for your case. Some lawyers use both methods, get different figures, and then decide on a valuation that is appropriate based on the specific details of the case.

It is critical that your pain and suffering is valued accurately. However, you should not have to worry about this calculation. Instead, allow an experienced, knowledgeable Gainesville personal injury lawyer to document your pain and suffering, determine the financial value of this critical non-economic loss, and seek fair compensation from liable parties.

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What Is Pain and Suffering?

Pain and suffering is a common category of damages included in personal injury and wrongful death cases. The term “pain and suffering” can refer to several specific conditions, including:

Physical pain, which can include both short-term pain and chronic pain
Discomfort, such as the type one might feel when they suffer nerve damage
Loss of physical abilities, which is common when someone suffers spinal cord injuries and other disabling conditions
Depression, which can result from a specific event (like a car accident), health conditions, and other circumstances that are relevant to a personal injury case
Anxiety
Post-traumatic stress disorder (PTSD), which is common among traffic accident survivors and many other groups that may pursue a personal injury case
Scarring
Amputation injuries
Other forms of disfigurement
Sleep loss
Lost quality of life

Pain and suffering is both personal and complex. Personal injury attorneys often lean on mental health professionals to:

Identify specific types of pain and suffering the client is experiencing, including clinical conditions like anxiety and PTSD
Determine what kinds of treatments may be beneficial for the client, how long the client may need those treatments, and how much the treatments may cost
Administer treatment
Document the client’s pain and suffering

Your pain and suffering will be unique to you. Your legal team will respect your privacy and mental health challenges as they document all pain and suffering you deserve compensation for.

How Might a Lawyer Calculate the Monetary Value of Pain and Suffering?

Personal injury lawyers typically use one of two methods to assign a financial value to pain and suffering. In some cases, it may be appropriate to use both methods, perhaps splitting the difference between the two calculations.

The two ways that your attorney can calculate pain and suffering are:

The Per Diem Method

An attorney who uses the per diem method (“per diem” is Latin for “per day”) assigns a monetary value to each day that you have to endure pain and suffering. Though an attorney may have their own method for determining that per-day value, some use the amount of money you would earn per day working a job.

Whatever daily value an attorney assigns to a client’s pain and suffering, the lawyer will need to have justifiable grounds for that value.

The Multiplier Method

When using the multiplier method, the attorney will:

Calculate the total cost of the plaintiff’s economic damages (such as medical bills, lost income, and property damage)
Multiply the cost of the economic damages by a multiplier, which generally ranges between 1.5 and 5
Get the value of the pain and suffering by multiplying the cost of economic damages by the multiplier

If an attorney believes the client’s pain and suffering is uncommonly severe (such as in the case of a wrongful death), they may choose a higher multiplier.

Through One Method or Another, Your Attorney Will Assign a Fair Value to Your Pain and Suffering

Your attorney can explain which calculation method they are using for your case, if you are curious. Regardless of how your attorney determines the cost of your pain and suffering, they will be sure to demand all the compensation you deserve.

The value of your pain and suffering may depend on several variables, such as:

The severity of your immediate pain: Physical pain is a challenge that every personal injury lawyer must account for. Those who suffer particularly painful injuries, such as burns, may deserve an uncommonly large sum to reflect their acute pain.
Whether you have any chronic pain conditions: The longer you are enduring physical pain, the higher your pain and suffering calculation should be. If you have any chronic pain or discomfort, your lawyer will reflect these lasting conditions in their calculation.
The nature and severity of your physical injuries: Some physical injuries warrant a higher calculation of pain and suffering. For example, someone who loses their arm generally endures far greater pain and suffering than someone who suffers a mild bruise.
The nature and severity of your emotional and psychological hardship: Every person has a different emotional and psychological response to auto accidents, slip and fall accidents, and other events that may prompt a personal injury case. Your attorney will reflect the nature and severity of anxiety, depression, emotional anguish, psychological distress, and other conditions in their pain and suffering calculation.
Whether you are disabled: Disabling injuries have a higher financial cost, and they also tend to worsen your pain and suffering.

Your lawyer will evaluate all relevant factors. They will calculate your pain and suffering in a way that reflects the hardship you’ve endured, as well as any hardship you will endure in the future.

Pain and Suffering Is Just One Category of Damages You May Deserve Compensation For (Here Are Some Others)

Pain and suffering is a critical category of damages, and it’s one your lawyer will not overlook. That said, it is just one of many damages for which you may deserve compensation.

The typical personal injury case can involve:

Medical expenses, with some clients requiring ambulance transport, emergency services, hospital services, surgeries, X-rays, MRIs, CT scans, specialist appointments, and many other forms of care
Property damage, which can result from auto accidents, boat accidents, and many other case types that fall under the scope of personal injury law
Professional losses, such as the loss of income, earning power, promotion and bonus opportunities, and benefits
Disability-related damages, which may include housing costs, the cost of disability-related updates to a residence, caregiver costs, transportation costs, and permanent loss of income

Your lawyer will calculate the cost of each of these damages, should they be relevant to your case. After factoring in the cost of your pain and suffering, your attorney will determine how much compensation you deserve (which you might call your “case value”).

Pain and Suffering Is Also a Consideration in Wrongful Death Cases

You should hire a lawyer to help in the aftermath of a wrongful death. If you are not certain whether a loved one’s passing qualifies as a wrongful death, that is all the more reason to reach out to a lawyer today.

Pain and suffering can be the most important damage in a wrongful death case, though every loss is important. Survivors who lost a loved one in a wrongful death may endure:

Intense grief, which can be particularly complicated and long-lasting when a loved one dies suddenly
Severe depression
Anxiety
Despair
Thoughts of self-harm
Loss of the decedent’s comfort and companionship
Lost sleep
Diminished quality of life

Most of these types of pain and suffering aren’t just possible for those affected by a wrongful death. These challenges are expected for most survivors.

Whatever you’ve been through and whatever you may face in the future, allow an attorney to demand fair compensation based on your unique circumstances.

How an Attorney Can Help You (They Do Far More Than Calculate Pain and Suffering)

As discussed, your attorney will be calculating the cost of both your economic and non-economic damages, including pain and suffering. This is an essential step in your case, but it is just one of many steps that will also include:

Determining Who Is Liable for Your Damages (Including Pain and Suffering)

When someone is “liable” it means they are financially on the hook for someone else’s damages. Your attorney will evaluate the facts of how you came to suffer harm, review insurance policies, and identify all parties that are liable for your damages.

Proving That the At-Fault Party Has Caused You This Harm

Part of your case will be proving the at-fault party’s negligence, and your attorney may do this by:

Establishing that the at-fault party owed you a duty of care
Proving with evidence that the at-fault party violated their duty of care
Establishing a direct link between the at-fault party’s breach of duty of care and the circumstances that left you injured (or without your loved one)

Then, your attorney will share proof of your damages to show the cost of the at-fault party’s negligence. Attorneys make this argument in virtually every case, so trust them to make it convincingly.

Documenting Your Damages, Including Your Pain and Suffering

Liable parties will likely need to see concrete proof of your damages before they agree to a settlement. If your case goes to trial, the finder of fact (such as a jury) will likely need to see such proof, too.

Your attorney may document your pain and suffering and other damages using:

Mental health professionals’ evaluations of your pain and suffering (especially for clinical conditions like PTSD, depression, and anxiety)
Your statements about how the pain and suffering has diminished your quality of life and generally affected you
Medical records
Medical bills
All relevant financial records

Testimony from experts, such as economists, may also support your lawyer’s financial demands.

Establishing Your Total Case Value

Your attorney will determine exactly how much compensation you deserve for pain and suffering and other damages. They will present their demands in a direct, detailed manner to liable parties.

Fighting for Fair Compensation (Likely Starting with a Settlement)

Your attorney will be intent on securing all the compensation you deserve. No matter how they calculate your pain and suffering or what challenges lie ahead, their goal will be crystal clear: Secure the compensation you deserve—every single dollar of it.

Ideally, liable parties will see your lawyer’s demands as fair. They may agree to a fair settlement. This outcome is far from a given, though, and your attorney will be ready to take legal measures if necessary.

(If You Need To) Suing Liable Parties

Some clients in personal injury cases and wrongful death cases choose to sue. You and your attorney can discuss this possibility. If filing a lawsuit is the course you ultimately take, your lawyer will file the paperwork as soon as possible.

Filing a lawsuit can lead to trial, though it does not always. If your case leads to court, your lawyer will continue to fight for your best interests and the compensation you deserve.

Pay Nothing Out of Your Pocket to Hire Your Personal Injury Attorney

The cost of hiring a lawyer should not scare or intimidate you. In fact, in most cases, there is no out-of-pocket cost to hire a personal injury attorney.

Instead:

The law firm takes your case on contingency, which means the firm only receives a fee if the attorney secures a settlement or judgment for you
The firm covers all case-related costs, such as expert fees
If your attorney gets compensation for you, your attorney gets their fee—and if not, you owe the firm nothing

As you probably realized, this means the law firm faces the most pressure to get the outcome you deserve. This should be comforting to you, the client. Not only will you face no out-of-pocket cost for high-value legal services, but your attorney will have a direct incentive to secure the compensation you deserve.

Steven A. Bagen Attorney for Bicycle Accident Cases near Gainesville, Florida area — **Steven A. Bagen**, **Personal Injury** **Lawyer** **in Gainesville, Florida area**

Once You Hire a Lawyer, You Can Turn Your Focus to Rest, Healing, and Other Important Matters

Do not wait to hire an attorney to calculate your pain and suffering and fight for the compensation you are owed. You should be able to focus on rest and healing, and you can do that once you’ve hired your legal team.

There may be a deadline for filing your case, which is even more reason to retain your attorney as soon as possible.