While most people can describe pain and suffering, defining it within a narrow legal perspective can be more difficult. In fact, the very term “pain and suffering” has a specific meaning in the context of a personal injury case. It is important for victims to understand what they can and cannot claim for pain and suffering when filing a personal injury lawsuit.
What Is Pain and Suffering?
While most people think of physical pain when they hear the term “pain and suffering,” the words actually represent emotional distress or mental anguish endured by a victim due to the negligence of an at-fault party. This means that in order to prove pain and suffering, there must be some type of injury, although not necessarily a physical one, and there must be negligence on someone else’s part. Simply enduring pain or distress is not enough to prove “pain and suffering” in the legal sense.
Emotional distress can encompass a wide range of feelings, including physical discomfort; depression; memory loss; anxiety; limits on physical abilities due to an injury; loss of intimacy with a spouse or partner; and psychological trauma.
How is Pain and Suffering Calculated?
It can be difficult to convince others of pain and suffering when the victim appears to be well, or to measure one person’s pain against another’s. Therefore, pain and suffering is often calculated using a formulaic approach.
One basic method of calculating pain and suffering is to use a multiple of the actual monetary costs, or “special damages,” such as medical bills, out-of-pocket expenses, property damage and lost salary, wages or benefits. Pain and suffering, which falls under the heading of “general damages,” is often categorized as “current” or “current and future.” Pain and suffering which is expected to endure a long time may be worth more money than pain and suffering that has a foreseeable end.
What Do Insurance Companies Look for When Paying for Pain and Suffering?
Most insurance adjusters expect to add a certain amount to the special damage total for pain and suffering. However, the amount offered to the victim is often much smaller than what a jury could award if the case went to trial. A personal injury attorney with experience in calculating settlement amounts could help the victim avoid falling prey to an unscrupulous insurance adjuster who attempts to settle the case for a very small amount of money.
Generally speaking, insurance adjusters know that they will probably pay 1.5 to three times the amount of special damages in pain and suffering in a reasonable settlement of a case involving a relatively minor injury such as whiplash. More serious cases in which the victim is expected to be in pain for a longer period of time may garner up to five times the amount of special damages. Very serious cases in which the victim is permanently paralyzed may result in much more money.
How Can A Personal Injury Attorney Help Prove Pain and Suffering?
Calculating pain and suffering may seem relatively straightforward, but it is often difficult for the victim to put his or her own case into perspective. Most victims rate the value of their cases much too high or much too low. A personal injury attorney who has handled many cases can offer objective advice on how much the case is really worth and can help the victim pursue that amount from the insurance company.
Additionally, a personal injury attorney may be able to help the victim find experts and other resources that will convince the insurance company to offer a reasonable settlement. A lawyer can represent the client both at the negotiating table and in court if the case goes to trial.
The personal injury attorneys at David & Philpot, P.L. understand the pain and suffering accident victims can face and know what it takes to obtain the compensation they deserve. Contact us today for a free consultation, or fill out our free case evaluation form and we will get right back with you.