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

When someone else’s carelessness causes an injury, the physical and emotional toll can feel just as heavy as the medical bills.

One question often asked by personal injury victims is how is pain and suffering calculated? In Florida, including places like Orlando, Gainesville, and Ocala, this part of a claim is just as important as lost wages or medical expenses.

Yet, it’s also the most difficult to pin down with a number.

Pain and suffering damages are real, and Florida law allows injured people to seek money for them. But how do lawyers and insurance companies come up with a fair amount?

How is pain and suffering calculated in Florida personal injury claims?

Pain and suffering includes both physical pain and emotional distress like anxiety, depression, and sleep issues.
Florida allows these non-economic damages only if you meet the serious injury threshold—like permanent injury or significant disfigurement.
Insurers often calculate pain and suffering by multiplying medical costs or estimating a daily rate of suffering based on injury severity.
Medical records, therapist notes, pain journals, and witness statements help prove your emotional and physical suffering.
Delays in care, social media posts, or missed treatments can reduce your payout or credibility.
You usually have 2 years to file a claim in Florida, but early action builds a stronger case and helps secure fair compensation.
Wrongful death claims may include pain and suffering for grieving family members, including loss of companionship and emotional trauma.
Most cases settle before trial, but a lawyer’s documentation and negotiation are key to ensuring your pain and suffering are fairly valued.

What Counts as Pain and Suffering in Florida?

Pain and suffering includes more than just physical discomfort. Florida law allows injured people to seek compensation for both physical pain and emotional strain. These losses are known as non-economic damages.

They don’t come with receipts but still affect your daily life.

These damages may include:

Chronic pain from your injuries
Sleep issues or fatigue
Depression or anxiety
Fear of driving or going outdoors
Emotional distress from permanent scarring or disfigurement

Let’s say you’re hurt in a truck accident on I-75 in Marion County. You break a leg, need surgery, and miss work for two months. Your physical pain is constant, and you can’t go for your morning runs anymore.

You also struggle with anxiety every time you hear brakes squeal. All of that is pain and suffering.

Courts and insurers will consider how the injury changed your life. They look at your lifestyle before the accident and what you’ve lost since.

If your injury makes it harder to care for your kids, do your job, or enjoy your hobbies, that matters.

Florida’s Legal Standards for Pain and Suffering

Pain and suffering damages are part of a larger personal injury claim in Orlando and other Florida cities. But the law limits who can file for these types of damages in certain cases.

For example, Florida’s no-fault insurance law requires drivers to first use their Personal Injury Protection (PIP) coverage for basic injury treatment.

PIP doesn’t cover pain and suffering.

To sue for these damages in a car crash case, your injury must be considered serious under Florida law.

This includes:

Permanent injury
Significant and permanent loss of a bodily function
Significant scarring or disfigurement
Death (filed by surviving family members)

If your case qualifies, you can seek compensation beyond the PIP limits. The rules are more flexible in other personal injury cases unrelated to car accidents, like slip and falls or dog bites.

Each case is different. A pedestrian hit by a car may have the same medical bills as someone injured in a fall at a store, but the pain and suffering value could vary widely.

How Insurance Companies Calculate Pain and Suffering

Insurance companies use several methods to decide how much money to offer for pain and suffering. There is no one rule they have to follow, but they often use some common methods.

One way is by looking at how much your medical care has cost and how serious your injury is. They might offer a smaller amount if you have a minor injury and recover quickly. If your injury is more serious and takes a long time to heal, they may offer more. If the injury changes your life in a big way, that number usually goes even higher.

Another way is by thinking about how many days or weeks you’ve been in pain. They try to guess what each day of pain is worth and then multiply that by the number of days they think you’ve suffered. This works best when it’s clear how long your recovery will take.

These methods are just starting points. Insurance companies also look at other things like your medical records, the photos you’ve taken, your prescriptions, and sometimes even your social media posts.

All of this helps them decide what your pain and suffering is worth.

How Medical Records Support a Pain and Suffering Claim

Good documentation can increase the value of your pain and suffering claim. If your doctor notes your complaints of pain at every visit, it helps. If your therapist writes about your anxiety or depression since the accident, that helps, too.

Make sure your records include:

Consistent reports of pain and emotional strain
Notes on daily challenges (like mobility, sleep, work)
Changes in your medication or need for therapy
Recommendations for ongoing treatment

Avoid leaving gaps in your treatment. Insurers will use any break to argue that you weren’t in pain. Keep a journal and be honest with your providers about your feelings.

In Florida, juries tend to believe what’s written in your chart more than what’s said in court. Your records must reflect your daily struggles.

Factors That Can Lower Your Pain and Suffering Payout

Not every claim leads to a large pain and suffering settlement. Certain factors can reduce the value, including:

Gaps in treatment
Delays in seeking care
Low property damage (in car accident cases)
Pre-existing conditions
Conflicting statements or social media posts

For example, if your social media shows you hiking in Ocala National Forest after claiming back pain, the insurance company will question your claim. Also, if you skip physical therapy sessions or cancel follow-ups, the insurer may say you didn’t take your recovery seriously.

Avoid these common mistakes:

Posting about your activities
Downplaying symptoms in medical visits
Skipping appointments without a valid reason
Failing to explain pre-existing conditions to your doctor

Always speak with your medical team about how the injury affects you, and follow their advice carefully. Juries want to help people who help themselves.

Emotional Pain and Mental Suffering After an Accident

Many people focus only on physical pain when they think about injury claims. But mental and emotional suffering is just as real. Florida law allows victims to seek compensation for the emotional strain that follows a serious accident.

This can include:

Anxiety in crowded places
Panic attacks
Trouble sleeping or nightmares
Loss of enjoyment in life
Mood swings or isolation

For instance, someone hurt in a car accident on I-4 near Orlando may have daily flashbacks or avoid driving altogether. These changes matter. Even if the physical injury heals, the mental distress can stay for months or even years.

Family members may also notice changes. A once outgoing parent may withdraw from activities or stop interacting with children. These shifts should be documented.

Emotional pain doesn’t show up on an X-ray, but it can affect every part of a person’s life.

How Long Pain and Suffering Can Be Claimed

In Florida, injured people usually have two years to file a personal injury lawsuit, including claims for pain and suffering. This deadline is known as the statute of limitations.

There are exceptions. Extra time may be allowed if the injured person is a minor or if the injury was discovered later. But waiting too long can hurt your case. Even if you’re unsure about suing, it helps to speak with a lawyer early.

Over time, evidence fades. Witnesses forget. Medical records may be harder to retrieve. These things make it harder to show how much you’ve suffered.

Here’s a simple timeline:

Immediately after the incident: Get medical care and report the accident
First 30 days: Follow treatment plans and document pain levels
First 90 days: Keep a journal and track emotional and physical struggles
Within 6 months: Talk to a personal injury attorney about your legal options
Before 2 years: File your lawsuit, if needed

Acting early gives your lawyer more time to build a strong case. It also sends a message to the insurance company that you’re serious.

Steps to Take in the Weeks After the Injury

Taking action in the days and weeks after your injury helps protect your claim. Pain and suffering damages rely on more than just the injury itself. You must show how it affected your life.

Here’s what you can do to support your claim:

Visit all medical appointments: Even follow-ups matter
Track your pain: Use a daily log to rate your pain from 1 to 10
Write down feelings: Notes on mood changes, frustration, or fear help
Ask loved ones to write statements: Their point of view can support your claim
Save receipts: Not just for bills, but for anything that shows life changes (like hiring help around the house)

These steps provide a record that helps prove your non-economic damages. A strong claim tells the full story, not just the physical side.

Pain and Suffering in Wrongful Death Cases

When someone dies because of another person’s negligence, their family may be able to claim pain and suffering. Florida allows certain family members to seek these damages in a wrongful death case.

Eligible family members include:

Spouse
Children
Parents (in some cases)

They can claim for:

Loss of companionship
Mental pain from the loss
Loss of guidance or support

For example, if a child loses a parent in a motorcycle crash near Ocala, the child may suffer long-term emotional pain. The courts consider that loss when awarding damages.

It’s important to note that these claims are made by the surviving family, not by the deceased’s estate. A wrongful death attorney can explain the difference and help guide the process.

How Pain and Suffering Fit into a Settlement

Most personal injury cases settle before trial. Pain and suffering is a big part of that discussion. A fair settlement should reflect your total losses, including those that can’t be measured in dollars.

When your lawyer negotiates a settlement, they will use:

Your medical history
Your daily life challenges
Testimony from people close to you
Expert analysis (like from doctors or therapists)
Photos, videos, and written records

The goal is to show how the injury changed your life and why you deserve compensation. Florida law doesn’t cap pain and suffering in most personal injury cases, which means there is room to pursue the full value of what you’ve endured.

Insurance companies don’t always offer fair amounts up front. That’s why strong records and firm negotiation matter. If the offer is too low, your lawyer may suggest filing a lawsuit to let a jury decide.

Common Questions About Pain and Suffering in Florida

People often have many questions when they start a personal injury claim. Here are a few answers that may help:

Can I claim pain and suffering without physical injuries?

Usually, no. Florida courts require a physical injury as the basis for a pain and suffering claim.

How do I prove emotional distress?

Your therapist or counselor can provide records. Friends and family can give statements. Journals and photos can help, too.

Do I need a lawyer to claim pain and suffering?

You aren’t required to have a lawyer, but your chances of getting fair compensation are higher with legal help. Insurance companies often offer less to people without legal representation.

Will my social media be used against me?

Yes. Insurance companies often review your posts. Be cautious about what you share.

Let a Trusted Florida Injury Firm Help

Putting a dollar value on your suffering is not easy. The process takes time, evidence, and attention to detail. If someone else’s carelessness left you in pain, you shouldn’t have to go through this alone.

At Steven A. Bagen & Associates, P.A., we’ve spent over 40 years fighting for Florida’s injured. We’ve helped people just like you in Gainesville, Ocala, Orlando, and across the state.

If you have questions about your claim or want to know what your pain and suffering may be worth, our attorneys are here to listen and guide you forward.

Call us at (800) 800-2575 to schedule a free consultation. We’re available 24/7, and you don’t pay unless we win your case.

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