The phrase ‘pain and suffering’ is a legal term for the emotional and physical stress that results from an injury. ‘Pain and suffering’ are a classification of damages that plaintiffs may be entitled to if they win a personal injury or wrongful death claim in a civil lawsuit. ‘Pain and suffering’ damages are frequently intended to compensate a plaintiff for the intangible effects of an injury or the loss of a family member.
The value of a personal injury claim that includes damages for pain and suffering is oftentimes not easy to calculate. ‘Pain and suffering’ valuation will depend on several different factors, and injured claimants oftentimes cite these factors to argue for a higher calculation of ‘pain and suffering’ damages.
This article compares the difference between ‘pain and suffering’ damages and other types of damages, the types of items included in ‘pain and suffering’ damages, and how these damages are calculated. Finally, this article provides an overview of how to negotiate ‘pain and suffering’ with an insurance company.
Special Damages versus General Damages
There are two main types of damages available to plaintiffs in personal injury lawsuits: special damages and general damages.
Special damages describe the overall category of economic or monetary damages that result from an injury or accident. Special damages may include past and future medical bills, wage loss, funeral expenses, and property damage. When a plaintiff is injured in an accident, he or she may be entitled to one or all these types of damages. Plaintiffs who prevail are entitled to the actual monetary value of these damages as compensation. Future medical bills and wage loss are adjusted for inflation and the cost of living. The plaintiff may need to prove that he or she has incurred these actual damages and must provide evidence of the actual invoices or actual payments made. Expert testimony from medical providers, economists, and life care planners are sometimes used to establish the existence and value of special damages at trial.
General damages refer to the category of non-monetary damages that result from a personal injury or non-injury incident. Generally speaking, general damages include four categories: (1) physical and emotional pain and suffering, (2) emotional distress, (3) loss of consortium, and (4) loss of society and companionship.
Physical Pain and Suffering
‘Pain and suffering’ damages typically include monetary compensation for any actual physical pain and suffering. Physical pain and suffering refer to the damages related to physical pain that an injured person endures from an injury or accident. Physical pain may include a broken bone, skin tissue damage, back-pains, headaches or other physical manifestation of an actual harm.
In addition to physical pain, plaintiffs can recover for the permanent physical effects of an injury. Scarring or disfigurement may affect an injured plaintiff for the remainder of their life. Included within the compensation related to pain and suffering is monetary damages for the long-term effects of any permanent physical injuries.
To prove the existence of actual physical pain and suffering, the plaintiff may offer their own testimony at trial. Alternatively, a plaintiff may offer testimony from medical experts to discuss the injury or treatment and recovery process or offer testimony from close friends and family detailing their experience of how the plaintiff’s physical injuries have affected the plaintiff.
Mental Pain and Suffering
Mental pain and suffering encompass a wide range of items a plaintiff can recover. Mental pain and suffering generally includes:
Generally speaking, this list of mental pain and suffering can be referred to as general pain and suffering.
To prove a plaintiff suffered general pain and suffering, the plaintiff may testify about the stress and anxiety that is a direct result from a traumatic accident. Additionally, the plaintiff’s lawyers are able to introduce testimony at trial from family members, friends, coworkers, or supervisors who can also attest to the effect the injury had on the plaintiff’s emotional state.
In order to prove loss of quality of life or loss of enjoyment of life, a plaintiff must show that he or she can no longer engage in the activities she participated in prior to the accident. If the plaintiff was actively engaged in sports before an accident but is unable to engage in activities after the accident, the plaintiff would need to introduce evidence of their inability to engage in that specific activity and how that affected the plaintiff’s ability to enjoy life.
One important aspect about general pain and suffering is that a plaintiff who makes a claim for pain and suffering does not put at issue his or her prior mental health history. General pain and suffering is available any time a plaintiff suffers a physical injury, no matter how minor the injury. When a plaintiff makes a claim for general pain and suffering, the defendant cannot access the plaintiff’s mental health history from before the accident.
Disclosure of mental health records can be extremely invasive and stressful for a plaintiff, so the law restricts access to a plaintiff’s mental health records except when a plaintiff makes certain claims. Although a claim for personal injury allows a defendant to access prior relevant medical records, it does not let a defendant access prior mental health records.
However, if a plaintiff makes a claim for a mental health injury above and beyond general pain and suffering, the plaintiff will be deemed to have put his or her mental health history at issue. If the plaintiff suffered severe emotional distress, the defendant will be able to access the plaintiff's prior mental health history through discovery requests or by subpoena. Mental health records become accessible for claims like severe emotional distress, PTSD, or a psychological disturbance. A claim for severe emotional distress or PTSD usually entitles a plaintiff to a greater recovery than general pain and suffering. But it also requires the plaintiff to produce more evidence related to the plaintiff’s past mental health history and the severe effect of the accident or injury on the plaintiff’s mental health.
Emotional Distress Damages
Another category of damages related to pain and suffering damages is emotional distress damages. Although pain and suffering and emotional distress are often confused as the same thing, there are important distinctions. The most significant distinction is that a claim for emotional distress may exist as a cause of action in a lawsuit, whereas pain and suffering is a type of damages.
A claim for emotional distress can be made even when there is no physical injury to the plaintiff. A plaintiff can recover for emotional distress without being physically injured where the plaintiff: (1) witnesses a traumatic incident, (2) experiences severe emotional distress due to witnessing the incident, and (3) where the person injured in an incident is closely related to the person making a claim for emotional distress.
Examples include where a mother looking out the kitchen window witnesses her child get hit by a passing vehicle while playing in the street or where two people in a car accident are closely related and one person witnesses the other get injured in the accident.
A claim for emotional distress can either be based on another party’s negligence or from intentional conduct. Negligent infliction of emotional distress occurs when someone’s negligence causes an accident, such as running a stop sign while driving due to being distracted.
A claim of intentional infliction of emotional distress occurs in situations where a plaintiff witnesses an intentional act that causes injury to the plaintiff or another person, such as witnessing an assault on a family member or personally being subjected to physical abuse.
A claim for emotional distress will likely put at issue the plaintiff’s mental health history. This means that the defendant may be able to ask about the plaintiff’s prior mental state before the accident and obtain prior mental health records.
Loss of Consortium, Society, and Companionship
Loss of consortium means the loss of companionship, love, affection, and moral support that one spouse or registered domestic partner experiences when the other spouse is injured. Sometimes after an accident, an injured person is no longer able to engage in intercourse or intimate activities. An accident may also cause an injured person to become depressed or unable to emotionally support a spouse like before an accident. The non-injured can make a claim for loss of consortium to recover damages to compensate for these losses.
The spouse who claims loss of consortium will often be deposed or called as a witness at trial in order to discuss the ways in which the injured spouse no longer engages emotionally or intimately. This may be uncomfortable for some plaintiffs because an attorney is allowed to ask private and intimate details about the parties’ sexual history and marital life in order to evaluate the claim.
How to Calculate Pain and Suffering
The amounts for past and future pain and suffering, emotional distress, and loss of consortium are determined by the jury. There is no set formula to determine the amount of pain and suffering a plaintiff is entitled to. Sometimes, courts or insurance companies refer to a multiplier to determine pain and suffering. The multiplier ranges anywhere from 1.5 to 5 times the special damages. If a plaintiff incurs $10,000 in medical bills following a car accident, the plaintiff may generally expect to recover $15,000 total based on the 1.5 multiplier. This is a rough estimate, and pain and suffering recovery is based on a variety of factors, including the types of injuries sustained in an accident, the severity of the accident, and the future prognosis.
There are also caps on non-monetary damage recovery for certain types of claims in many states. Some states place a cap on pain and suffering in medical malpractice cases in order to protect doctors from costly lawsuits. Injured patients in those situations can recover the full value of any economic damages they incur for further treatment or lost wages but can only recover up to the legal limit of pain and suffering, which is often $250,000.
Some states also limit pain and suffering recovery in car accidents where the injured driver does not have insurance. In those situations, the injured driver without automobile insurance can only recover damages for economic losses, like property damage and medical bills. The purpose of these laws is to punish uninsured drivers in states where automobile insurance is required by law.
Negotiating an Insurance Claim with the Insurance Company
Before a personal injury claim proceeds to a lawsuit, an injured party usually has the opportunity to negotiate directly with the at-fault insurance company’s adjuster. An adjuster is someone hired by the insurance company to manage claims. When negotiating with the adjuster, a claimant should make a demand to the insurance company for both special and general damages after any medical treatment is done.
Special damages can be calculated by adding up every monetary loss resulting from the accident. This includes all medical bills, insurance liens, wage loss for time taken off work or vacation time used, and out-of-pocket expenses. A property damage claim will usually be negotiated separately with a property damage adjuster.
In addition to special damages, a claimant should make a demand for pain and suffering. Insurance adjusters will generally use the 1.5 multiplier to determine an initial offer of pain and suffering. However, a claimant can, and should, negotiate to get the adjuster to offer a higher number. Adjusters have a range of authority. Meaning, they have a range of money that they are authorized to settle within. In a car accident where the claimant incurs $10,000 in medical bills and has no serious or permanent injuries, the adjuster will likely have between $10,000 and $20,000 to settle the claim. The adjuster’s goal is to settle the claim as close to the lower end of authority as possible.
There are different factors a claimant can use to argue for an increase in pain and suffering. The severity of injuries is the single most important factor in determining pain and suffering. Serious injuries, like broken bones, increase the value of pain and suffering. Permanent scarring or disfigurement is lifelong and will greatly also increase the value of pain and suffering.
A claimant should use documentation to support his or her claim for special and general damages. Documents like medical records, photographs, and traffic collision reports are important and can help support negotiations with the adjuster.
If the adjuster does not offer a settlement that the claimant feels fully compensates for a claim, the claimant can choose to file a lawsuit. Once a lawsuit is filed, the insurance company hires an attorney to represent the insured party.
Although defense counsel represents the at-fault defendant, the insurance company has the final determination in accepting or rejecting a settlement offer. Defense counsel works closely with the insurance adjuster and can only settle for an amount that is approved by the insurance adjuster.
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