Reports | July 11, 2023 | Personal Injury
After an accident, victims often experience various types of losses. Many of these losses are economic. For example, you may have medical bills flooding your mailbox, all while you lose income when you cannot work. Additionally, if your accident occurred while you drove a vehicle, you may face thousands of dollars in property damage bills.
You are likely also dealing with significant non-economic losses, such as physical and emotional pain and suffering. Unlike economic losses, which you can easily identify, non-economic losses are harder to value. How is pain and suffering calculated? What can you expect when you have losses like this that are difficult to assign a dollar figure to?
The best way to ensure you get the compensation you deserve for your pain and suffering is to retain a personal injury lawyer as soon as possible. An attorney can review the details and determine what you should receive for your pain and suffering based on what others have received for similar injuries and other calculations.
Also, note that your state’s laws can play a role in the damages you can pursue for pain and suffering and other non-economic losses. In the material below, we discuss Florida law regarding non-economic damages to illustrate how one state handles pain and suffering.
Contact a lawyer familiar with the laws in your jurisdiction if you have questions regarding non-economic damages.
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.
Get Help From a Personal Injury Attorney to Prove Your Losses
Working with a personal injury attorney will provide the support and guidance you need after the incident. That includes documenting all of your losses due to the incident. Your attorney has cases from others in similar situations that can help create guidelines for you to follow.
It’s hard to see and feel the impact of these personal injury matters. Yet, you deserve compensation to help you to move through your life. Contact an experienced personal injury attorney about your case today.
Once you have the right legal representation, you can focus on your physical recovery and not worry about how you will pay your bills. This can help with your overall prognosis in many situations. Contact our personal injury attorney in Gainesville.