If you’ve looked into filing a compensation claim after an accident, you might have come across the terms “pain and suffering” but what does it mean? How can an insurance company put a price on the pain you’ve suffered — and may continue to suffer?
We look at what pain and suffering is and what a fair settlement looks like.
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What Is Pain and Suffering?
Pain and suffering, in a legal context, is the physical and emotional pain you’ve suffered after an accident. For example, let’s say you’re in a car accident and sustain a traumatic brain injury, which results in you experiencing regular headaches. However, it’s also affected your cognitive function, and you struggle to concentrate and communicate with others. This impacts your confidence, so you shy away from social situations and lose touch with your friends, resulting in depression.
Because a settlement for pain and suffering comprises not just the physical pain but emotional anguish too, you may be entitled to compensation for the wider impact of the injury on your life. This is because, but for the accident, you would not have sustained the brain injury. Therefore, you would not have suffered cognitive problems and experienced depression and reduced confidence as a result.
What Constitutes Physical Pain?
An accident can cause many injuries, many of which cause significant pain. Sometimes, this pain might last for a few days, weeks, or months, but it eventually subsides. Other times, pain can last for much longer or be permanent. This doesn’t have to be a particularly severe injury, either. We all know someone who’s broken a bone once in their life. In most cases, they heal without complication. However, some breaks might cause a permanent deformity or lead to permanent pain and weakness in the affected area — even after years of physical therapy and surgery.
Some of the physical medical conditions and injuries that may form part of a settlement for pain and suffering include:
- Back and neck injuries, such as whiplash
- Spinal cord injuries, including nerve damage
- Traumatic brain injuries, ranging from mild to severe head trauma
- Broken or fractured bones
- Internal damage
- Headaches
- Sprained muscles
- Chronic pain or weakness after an injury.
What Constitutes Emotional Suffering?
Emotional suffering can severely impact an accident victim’s life — in some cases, more severely than any physical injury. Emotional suffering includes post-traumatic stress disorder (PTSD), trouble sleeping (insomnia), fear, worry, anxiety, anger, and grief. Emotional suffering also comprises cognitive changes after a traumatic brain injury, including dysarthria, dysphasia, and generalized concentration problems.
Any of these emotions and conditions can have a knock-on effect on every area of an individual’s life. If someone is fearful and has PTSD after a traumatic accident, they might have anxiety about leaving their home, causing them to be isolated and experience depression. This can diminish their quality of life, impacting their existing relationships and their ability to nurture new ones.
What Is a Fair Settlement for Pain and Suffering?
So now we know what pain and suffering is, what is a fair settlement for it?
There are two main ways in which insurance adjusters calculate damages for pain and suffering.
One is the “per diem” method — from the Latin for “per day”. This method works by assigning a dollar amount for every day a person suffers as a result of their injuries, from the day of their accident until the day when a medical professional estimates that their condition cannot improve further.
Let’s look at an example. A person is in a motorcycle accident that wasn’t their fault. In the collision, they break their leg and seek medical attention. After being in a cast for three months, they need surgery, which requires an additional two months of recovery. After that, they need six months of physical therapy before they can recover full range of motion and walk around without pain or discomfort.
They’ll be out of action for around 11 months, so they’ll be entitled to per diem damages for roughly 335 days (depending on how many days there are in a given month).
If you sustain an injury that will impact you for the rest of your life — for example, if you lose a limb and must use a wheelchair or prosthetics, or if you develop a permanent brain injury — you may be entitled to damages to compensate you for the rest of your life. If you are relatively young when you sustain the injury, you will receive more damages than another person who is 20 years older than you in an identical scenario.
The multiplier method is the second method of determining a fair settlement for pain and suffering.
To understand how this works, we first need to look at the different types of damages typically awarded in a compensation claim.
The first type of damages is economic. These are monetary damages you’ve experienced due to your injury and can easily be quantified with receipts and payslips. Economic damages compensate you for your medical bills — including emergency room and surgery fees, prescription medication, physical therapy, and transportation to and from the hospital. They also cover your loss of earnings, which you can calculate in two ways:
- If you are paid by the hour, multiply your hourly rate by the number of hours you’ve been out of work.
- If you are paid annually, divide your salary by 365 to calculate your daily rate, then multiply this by how many days you’ve been unable to work.
Economic damages also cover future expenses, so if you cannot work for several months or your doctor explains that you will need to take medication for the rest of your life, you can claim these losses as part of your settlement.
It’s important to explain how economic damages work because with this second method, pain and suffering — along with other non-economic damages, such as loss of enjoyment and loss of consortium — are calculated by adding a multiplier to your total economic damages.
This multiplier is a number between one and five. It’s often determined on a case-by-case basis, and all insurers work differently. Still, the more severe your injury and the more substantial impact it’s had on your life, the higher the multiplier will be and, therefore, the more total damages you will receive.
So how does this work in practice?
Let’s say you’re in a car accident in McAllen where you injure your neck and back and sustain a bump to the head. You’re unable to work for a few months and have fairly substantial medical bills. In total, your economic losses come to $30,000. If your injuries heal without complication and you require no further medical treatment such as surgery or physical therapy, a multiplier of 1.5 might be applied.
This means your total damages would be $45,000 — $30,000 for the quantifiable economic damages and $15,000 for the pain and suffering your injuries caused.
If you sustain the same injury and incur the same expenses, you’re left with permanent weakness and discomfort, making it more difficult for you to carry your shopping bags or pick up your young children without experiencing pain, a multiplier of two might be more appropriate. This bumps up your total compensation to $60,000 — $30,000 for your economic damages and another $30,000 for pain and suffering.
Now, let’s contrast this to a more severe outcome, where you need a walking aid, and the bump to your head causes a loss of sensation in your face, making it difficult for you to communicate with others. An insurance adjuster may apply a multiplier of four or five, resulting in total damages of between $120,000 and $150,000. In these cases, the settlement for pain and suffering far outweighs the $30,000 in economic damages.
These figures do not represent any particular case, but they illustrate how pain and suffering are calculated and how substantial your compensation could be.
Typically, injuries that can increase the multiplier applied are:
- Sustaining a traumatic brain injury, which may affect your cognitive function or ability to communicate
- A permanent scar or disfigurement
- Being paralyzed after an injury or suffering a permanent disability
- Any injury that impacts your independence and causes you to rely on others to complete even the most basic tasks.
You can use our personal injury calculator to calculate how much you could be entitled to in pain and suffering. This can give you a rough estimate of how much your claim might be worth, but it’s important to note that every insurance company uses different formulas to calculate damages. It’s always worth speaking to a personal injury lawyer with experience negotiating settlements in similar cases.
What comprises a “fair” settlement for pain and suffering is, in many ways, subjective. How do you put a price on the physical pain and emotional suffering you’ve experienced — and may continue to experience — especially when every individual is unique?
To ensure you get a fair settlement that compensates you for your pain and suffering, you must back up your claim with evidence. Make sure you keep all records of any expenses — such as for medical treatment or repairing your car — and take photographs of your injuries. It can also be helpful to keep a diary of how you feel, the pain you’re in, and how your injury limits your life — for example if you suffer PTSD and have a flashback or an anxiety attack before leaving the house. These can all be used to strengthen your claim and help your lawyer negotiate a fair settlement.
We also recommend seeking legal advice. You are well within your rights to claim compensation on your own. However, it can be challenging negotiating with an insurance adjuster whose goal is to get away with paying out as little as possible — all the while managing your pain, mental anguish, stress, and trauma.
Our personal injury lawyers in Texas are skilled at negotiating compensation and can advise you — based on their own experience — what a fair settlement looks like for your specific situation. We’ll also protect your legal rights and handle every aspect of your claim while you focus on making small but steady steps toward recovery.
If you’re worried about the cost of hiring a personal injury attorney to fight for a fair settlement for pain and suffering and the quantifiable damages you’ve incurred, we work on a contingency agreement, which means you won’t pay a cent unless we win your case.
To find out how much your pain and suffering could be worth, get in touch with our personal injury lawyers in McAllen and San Antonio for a free, no-obligation case review.
