Pain and Suffering: Unseen but very real
This post is part of a series about the types of damages people suffer as a result of an automobile collision. For information about property damage, medical expenses, or lost wages check out the Damages Category.
Pain and suffering, also known as General Damages, are one of the hardest things to prove in court. Compared to medical expenses or lost wages, damages for pain and suffering are often unpredictable and vary widely between cases. If you are suffering from the physical and mental pain of injuries sustained in a car wreck consider calling an attorney for a free consultation.
What, exactly, constitutes pain and suffering?
Broadly, pain stemming from your actual, physical injuries and any emotional suffering that is a by product of the injuries you have sustained. It is any negative emotion you had to endure because of the collision, including, fear, anger, humiliation, anxiety, and general loss of enjoyment of life. This includes not only the pain you have suffered to date but also the pain and discomfort you will suffer in the future.
How is pain and suffering calculated?
Are you asking me how much one particular person’s suffering is worth? I have no idea, because there is no fixed way to calculate pain and suffering, and that’s probably for the better. Putting a dollar value on something like pain is extremely hard for attorneys and juries. There are, however, two methods that are used to provide a starting point: The multiplier method and the per diem method.
What is the multiplier method?
The multiplier method takes the total amount of medical damages and multiplies them by a number between 1 and 5, with five being used for the most severe injuries. For example, if a person has $4,000 in medical damages (bills and expenses) and the injury was very severe (justifying the highest multiplier, 5) then the pain and suffering would be $4,000 x 5 = $20,000.
The multiplier method is probably the single most common method used by attorneys and adjusters because it is easy to explain and easy to apply. The question, however, now becomes what multiplier to use? Factors that will cause the multiplier to be higher include:
An injury that is well documented and can be objectively proven with diagnostic testing.
An injury that is gruesome or looks painful.
Permanent scarring, especially on the face or hands.
A crash that looks severe, for example if the car was totally crushed
Temporary or permanent loss of some bodily function.
Pain that is chronic
A Plaintiff who presents well and a Defendant who presents poorly
But the multiplier method is far from perfect even if it is a good starting point. Take a hypothetical client named Alice. Alice’s only injury was a large cut across her face caused by a piece of flying glass. She required 25 stitches to close the wound and has a long scar on her face, even though the wound is healed. Her medicals bills for the stitches are $1,000, useing a multiplier of 5 would give her $5,000 in pain and suffering. But $5,000 is grossly insufficient compensation for having a scar across your face for the rest of your life.
The multiplier method usually provides good valuation for short term injuries but tends to undervalue injuries whose damages are long term and stretch on far into the future. Which leads us to the second common way to calculate pain and suffering; the per diem method.
What is the per diem method?
The per diem method asks the jury to assign a value to each day of suffering and then multiply that value by the number of days the injured party suffered or will continue to suffer. It is calculated independently of medical bills and still leaves open the issue of how much value to assign one day of suffering. Many of the factors that call for a higher multiplier also call for a higher daily value.
Let’s consider Alice again. If we ask the jury to value having a scar across your face at $5 per day and we ask the jury to assume that Alice, who is 20 years old, will live to be 80 years old then her pain and suffering looks like this:
($5 per day) x (365 days a year) x (60 years of life remaining) = $109,500
Alice would receive almost 22 times as much under the per diem method as she would under the multiplier method.
But the per diem method is not perfect either. It tends to undervalue acute, traumatic pain even though it more properly values long term, chronic pain. Remember, there is no set formula for pain and suffering. A good attorney will look at all of the circumstances surrounding your case and may end up using a hybrid of both methods, or neither of them at all, in order to maximize your recovery.
How do you prove pain and suffering in Court?
The most effective way to prove pain and suffering is through your own testimony and the testimony of your friends and family. Your credibility and likability are also important factors when proving pain and suffering in court.
When discussing your injuries in court you will want to focus on giving concrete, relatable examples of how your injury and your pain affected you. I often summarize it as, “Don’t tell me, show me.” Consider Alice and Brian, who both have a broken collarbone:
Alice: My shoulder hurt a lot. I would say for a while after the wreck it was really hurting. It made it hard to sleep because my shoulder hurt. I took pain pills the doctor gave me, and they helped some, but my shoulder still hurt a lot.
Brian: For the first month or so after the wreck my shoulder hurt constantly throughout the day and during the night. I would usually take a pain pill at 10:30, right before bed, so I could go to sleep, but it wore off around 3am and I would wake up in the middle of the night and have to wait an hour or so to take another pain pill so I could go back to bed. It woke my wife up too, and she had work every morning, and I know it was hard on her.
Who do you think is in more pain, Alice or Brian? Brian gave a specific example of how his injury affects him (interferes with his sleep) and his family (interferes with his wife’s sleep). He gave times and specific actions (I take a pain pill at 10:30, it wears off at 3am) and indicates that this went on for a month. We can all relate to not being able to sleep because we are in pain and being woken up in the middle of the night by a sick family member. Furthermore, Brian’s wife can testify about the difficulty Brian had sleeping, strengthening his testimony.
Alice and Brian may have the save injury, but Brian gave concrete and relatable testimony that can be supported by another witness. Alice essentially just repeated “My shoulder hurt,” for a few sentences. We don’t have relatable examples of how the pain affected her, and she doesn’t give specific details or actions.
If you have been hurt in a car wreck make sure you are compensated for the physical pain and mental anguish you and your family had to go through. Contact an attorney to learn about your options.