The Price of Pain: Determining Compensation for Pain and Suffering in an Accident

One of the most difficult parts of settling a car accident case is determining fair compensation for pain and suffering. The insurance company might suggest one amount, and an experienced car wreck lawyer might demand another. If you or a family member has been injured, fair compensation goes beyond covering medical bills and car repairs.

Pain is an experience which can be difficult to document or quantify, and there are other types of suffering and loss associated with permanent and serious injuries. Your auto accident attorney will guide you through these factors while determining how much to ask for pain and suffering from your car accident.

Understanding the legal considerations behind damages for pain and suffering will help you gather the right evidence and witness testimony to support your valid claim for compensation.

What Is “Pain and Suffering?”

When someone else is negligent and/or liable for your injuries, you may be entitled to additional damages beyond your medical bills and property damage. Pain and suffering awards are intended to compensate the victim for the painful experience of injury, the discomfort of rehabilitation, and losses to their quality of life and potential.

Some examples include a victim who has been burned in a car accident and is entitled to compensation for enduring the burn itself, the painful treatment process, and the permanent scarring that will result. Another type of injury might prevent people from being able to lift and carry their child or impair their reproductive function. These losses deserve fair compensation.

The legal categories of loss an auto accident lawyer considers include:

• Intentionally Inflecting Emotional Distress

When the other people knew or suspected their conduct would cause you emotional distress and went on to cause you injury.

• Negligently Inflicting Emotional Distress

When you suffer legitimate mental or emotional harm caused by someone’s negligent action. Negligence means to cause injury carelessly or recklessly, rather than intentionally.

• Loss of Consortium

When someone’s intentional or negligent action causes you to lose the benefits and full experience of being a spouse, parent, or grandparent.

What Is the Role of the Car Insurance Company?

The insurance company will work with your attorney (or with you directly) in response to your demand letter and make a settlement offer. They are entitled to access your medical records and other evidence that substantiates your pain, suffering, and losses.

Insurance adjusters may tell you that you don’t need an attorney and that the compensation is based on formulas, but their initial offer will rarely compensate you fully for the losses you experience. Keep in mind that their first responsibility is to remain profitable by paying the smallest possible amount on valid claims.

One important factor to understand is the insurance policy limits in place. These limits represent the upper end of what the insurance company will offer for damages. Receiving more than the full policy amount is unlikely.

Should You Handle Your Own Claim for Pain and Suffering?

Most people who try to manage a pain and suffering claim without a lawyer wind up frustrated and bogged down in paperwork. At the end of the process, they may accept an offer that omits important areas of loss out of sheer exhaustion. Trying to negotiate with experts while still recovering from physical and emotional trauma may not be in your best interest.

An experienced car accident attorney will take on the burden of dealing with the insurance company and help you identify and gather the critical evidence that will substantiate your claim for pain and suffering. When the law firm you choose has a winning reputation in the community, insurance companies will dispense with delay tactics and willingly pay more to avoid taking the case to court.

Being injured in an accident is one of those crisis moments when you should have experts on your side who are strong advocates for your rights. Since reputable law firms will offer a no-fee-unless-you-win arrangement, you can have the best representation sitting next to you, allowing you to make these important decisions with confidence.

What Types of Pain and Suffering Should Be Part of Your Claim?

There are two broad categories which are part of a bodily injury claim. These are:

• Physical Pain and Suffering
• Emotional Pain and Mental Anguish

Some types of physical pain are relatively easy to establish because society generally accepts that those experiences are painful. A broken bone or a serious burn will need emergency medical treatment, leaving clear documentation, and these conditions are acknowledged to cause severe pain.

Mental trauma, emotional pain, soft tissue damage, sprains, whiplash, and back problems cover a broad range of severity and associated pain levels. Proving that these injuries are causing permanent damage or prolonged and debilitating pain may require more documentation.

These factors will help rate the level of both physical and mental pain:

• Documented severity of the injuries
• Expert statements on the level of trauma associated with those injuries
• Evidence showing the injuries have impacted your life, relationships, or job performance
• Details of medical treatment and medications needed to treat the injuries
• Expert opinions on how long these types of injuries persist or how often they reoccur
• Expected and necessary ongoing care, like therapy, medications, additional surgeries, etc.
• Documented activities or life opportunities which are no longer possible

How Is Pain and Suffering Compensation Calculated?

There are a number of methods the insurance adjuster and your car accident lawyer might use to calculate the right level of compensation. The two most common pain and suffering settlement examples are:

1. The Multiplier Method

This method works by taking the amount of the medical expenses associated with the accident and multiplying that amount by a factor between 1 and 5. The multiplying factor is based on the severity and permanent nature of the injury. Obviously, the key to a fair settlement is agreeing on the right multiplier.

2. The Per Diem Method

This strategy takes into account the daily pain and suffering and calculates compensation based on how long it will take to reach “maximum medical improvement.” This length of time is then compensated at an agreed rate per day, multiplied by the number of days until recovery.

Other Methods of Calculating Compensation

There are other methods which are sometimes used to reach the right amount—for example, the injuries and trauma might be put in the form of a job description, and then a reasonable amount is assigned based on what someone would expect to be paid to perform those actions. No matter which method is used, it should be clearly documented and easily explained to the court or jury if needed.

What Evidence Will Be Needed to Support Your Claim?

The most readily accepted evidence that a person is in pain is a record of immediate and repeated medical visits. An assumption is made that, if you did not go to the doctor or counselor, you were not in significant pain or anguish.

After an accident, it is important to seek medical care, even if you are concerned about the cost. If that medical care or counseling is necessary for your healing, you need to seek it to demonstrate the severity of your pain and to protect your health. Toughing it out will not help; in fact, it provides evidence that your pain is minor and bearable.

You should keep a journal documenting your pain, suffering, and recovery efforts following your accident. Be sure to include both physical pain and mental symptoms such as depression, anxiety, or PTSD events. It is easy to forget the details later, especially if you are taking medication.

Keep all of the following as important evidence for your claim:

• Photographs of the injuries
• Medical records
• Prescription records
• Medical bills
• Counseling or therapy bills
• Receipts for over-the-counter medications and medical equipment
• Documentation from your employer of lost time or impaired performance at work

Gathering Information from Witnesses

If there were witnesses to your auto accident, obtain their names and contact information immediately. Your car wreck lawyer will interview these witnesses, as well as other medical and psychological experts to support your claim for compensation.

If you need to interview witnesses yourself, prepare questions and document their responses in writing. When gathering witness statements, keep these tips in mind:

• Ask the witness to describe the location of the accident or event, identifying streets, lanes, landmarks, and where they were located or how they were involved.
• Ask the witness to draw a diagram or map of the accident or event.
• Ask the witness if weather or other outside influences were a factor in the accident or event.
• Ask for details of the crash or event and encourage the witness to use their own words but include what they saw, heard, felt, smelled, and experienced.
• Ask the witness to estimate distances and times, with the knowledge that this might be difficult for them. Use those statements to add notes to the diagram or map.
• If you interview witnesses and then decide to hire an attorney, provide both the questions you asked and all of the witness-provided information to them for evaluation and follow-up.

Engage the Right Experts to Handle the Problem

Just as your injuries and emotional pain need expert attention, your legal interests need immediate care as well. The act of consulting with a personal injury lawyer will further demonstrate to the insurance company that your claim is a serious one. Prevent mistakes that might hurt your case and avoid accepting too little for your injuries by reaching out for legal advice right away.

In the Houston area, your choice should be Schechter, McElwee, Shaffer & Harris, L.L.P. With over 40 years of experience in defending injured people, our board certified attorneys will fight for your fair and just compensation to make sure your future needs are met.

With a free consultation, you can have our team in your corner today and pay nothing unless we win. Call right now, or start a live chat and have our experts take charge of your case while you focus on a full recovery.