You might consider that personal injury compensation includes only tangible losses such as medical expenses and lost wages. Alternatively, you might have heard of “pain and suffering” damages but assume that they constitute a minor portion of a personal injury award. With a skilled personal injury lawyer, however, pain and suffering damages can amount to more than half of the total value of a personal injury claim.
What are Pain and Suffering Damages?
Both federal law and California law classify pain and suffering damages as “non-economic” damages. They are intangible, psychological damages that you suffer because of your injuries.
Physical Pain and Suffering
Physical pain and suffering mean the bodily distress you suffer as a result of your injuries. They might include:
- Neck pain (after whiplash, for example);
- Back pain;
- Broken bones;
- “Road rash” (from a motorcycle accident);
- Burn injuries;
- Paralysis; and
- Respiratory distress.
These are only a few of many symptoms that qualify as physical pain and suffering.
Emotional Pain and Suffering
Emotional pain and suffering are even more abstract and difficult to count than physical pain and suffering.
Some examples of emotional pain and suffering include:
- Diminished quality of life;
- Grief; and
- Cognitive disorders (“brain fog”).
It is much more difficult to recover damages for emotional pain and suffering if you did not suffer a physical injury.
Contrast With Economic Damages
Contrast non-economic damages with easy-to-count economic damages such as medical bills, lost wages, and out-of-pocket expenses such as child care while you are in the hospital or bedridden. Economic damages have a clear financial value and can be proven with receipts, bills, invoices, or other documentation.
Typical Methods for Calculating Pain and Suffering
Ignore the “pain and suffering calculators” you might find on the Internet. Pain and suffering awards vary depending on the facts of each individual case. Despite the lack of a neat formula, there are two common ways of estimating pain and suffering damages: the multiplier method and the per diem method.
The Multiplier Method
Under the multiplier method, a court calculates pain and suffering damages by multiplying economic damages (medical bills, lost wages, etc.) by a number between one and five to arrive at pain and suffering damages. The value of the multiplier depends on the degree of your pain and suffering.
If your economic damages total $20,000, for example, and the multiplier is 3.5, your total non-economic damages would be $70,000 ($20,000 x 3.5). In this scenario, pain and suffering damages would amount to over three-quarters of the value of your entire claim. There is nothing at all unusual about this proportion of pain and suffering damages to economic damages.
The Per Diem Method
Under the per diem method, you multiply the daily value of your pain and suffering by the number of days that you suffered. Suppose, for example, that you apply a daily value of $200 per day, and you need 180 days to recover from your injuries. This would work out to $200 x 180 days = $36,000, regardless of the amount of your economic damages.
Proving Pain and Suffering
Ultimately, pain and suffering are psychological. So how do you go about proving the amount of the pain and suffering component of your personal injury claim? A skilled lawyer can help you identify and obtain evidence that might greatly multiply the amount of your claim.
Some of the types of evidence that you can use to prove the extent of your pain and suffering include:
- Your medical records;
- The testimony of a medical expert on the pain your condition is likely to cause;
- A journal that you keep to document your pain and suffering from day to day; and
- Testimony from witnesses, such as members of your household.
The most persuasive witnesses are likely to be neutral third parties, such as expert medical witnesses or eyewitnesses, such as your co-workers. Examples of accidents that can result in a serious injury are:
- Car accidents
- Truck accidents
- Defective products
- Slip and fall accidents
- Dog bites
- Bicycle accidents
- Construction accidents
- Boating accidents
- Wrongful death
Legal and Practical Limitations on Pain and Suffering Damages
California applies a couple of major limitations on pain and suffering damages:
- You cannot obtain pain and suffering damages in a workers’ compensation case;
- California limits non-economic damages to $250,000 in medical malpractice cases; and
Many defendants do not carry enough insurance or possess sufficient financial resources to pay a large claim that includes high pain and suffering damages. This is more of a practical limitation than a legal limitation.
Don’t Underestimate the Value of Your Own Pain and Suffering
Your comfort and peace of mind are worth something. You are entitled to compensation when someone unjustly deprives you of them. You can enhance your chances of receiving a fair compensation award by paying close attention to establishing your right to obtain generous damages for your pain and suffering.