Money damages for “pain and suffering” make up more than half of the total compensation awarded in a great number of personal injury cases. Nevertheless, the intangible nature of pain and suffering means that calculating an exact amount of compensation is anything but straightforward.
Is There a Formula for Calculating Pain and Suffering Damages?
Typically, a claimant will use one of two popular methods of calculating damages in a personal injury claim – the “per diem” method and the multiplier method.
The “Per Diem” Method
“Per diem” means “per day.” Under the per diem method, you or the defendant’s insurance company assert a per-day value for your pain and suffering based on how much suffering you endured. Suppose, for example, that you claim $100 per day for pain and suffering, and you endured it for 910 days, for a total of $910,000. The insurance company might issue a counteroffer of $75 per day for a total of $682,500.
The Multiplier Method
Under the multiplier method, you multiply your medical expenses by a predetermined multiplier such as 5.0. The more suffering you endured, the higher the multiplier. If your medical bills were $150,00, for example, and your multiplier was 5.0, your demand for pain and suffering damages would total ($150,000 x 5) = $750,000. The insurance company might argue that a multiplier of 3.0 would be more appropriate and counteroffer with $450,000.
What Are the Different Kinds of Pain and Suffering?
As we all know from our own experience, pain and suffering come in many different varieties. Under California law, pain and suffering can be divided into two types — physical and emotional.
Physical Pain and Suffering
Physical pain and suffering mean physical pain and its associated anguish. Even physical pain is ultimately psychological since you don’t suffer while you are unconscious, no matter how serious your injuries are. Accordingly, the time that you spend comatose can reduce the value of your pain and suffering claim.
Emotional Pain and Suffering
Emotional pain and suffering include:
- Loss of enjoyment of life;
- Insomnia; and
- Other forms of psychological suffering.
Emotional pain and suffering must arise from your physical injuries. If it didn’t, then you cannot include it in your pain and suffering claim.
How Do You Calculate Future Pain and Suffering Damages?
If your doctors expect you to endure pain and suffering in the future due to your injuries, you need to include future pain and suffering damages in your claim. Remember, once you settle your claim you will not be able to come back and demand more money, no matter how inadequate your settlement turns out to be.
Future damages are notoriously difficult to calculate, and intangible damages like pain and suffering are doubly difficult. You will certainly need the assistance of an experienced personal injury lawyer. Your lawyer might also retain the services of a medical expert. This expert can help you calculate damages. They can also testify as a medical expert at deposition or, if necessary, in court.
What Other Factors Affect the Value of a Pain and Suffering Claim?
Several external factors could affect the amount of pain and suffering damages you actually receive.
You must prove that the defendant’s negligence actually caused the accident that injured you. One of the ways that insurance companies use the causation requirement as a weapon is to claim that your injury already existed at the time of the accident. This is particularly likely if you are claiming pain and suffering for certain types of suffering, such as back pain. If you can’t prove causation, the value of your claim will drop to zero.
Insurance Coverage Limitations
California requires its drivers to carry $15,000 per person in bodily injury liability insurance. This insurance must cover at least $30,000 per accident (in which more than one person is injured). In a serious car accident, this much might not even cover the cost of medical treatment. Add to that the 16.6% of California motorists who were uninsured in 2019, and the likelihood is high that you will receive little or nothing in pain and suffering damages for a car accident.
There are ways around these limitations, however, in certain cases. Your lawyer might, for example, identify a third-party defendant who is either able to pay your claim or who is better insured than the first defendant.
These possibilities include:
- The defendant’s employer, if the defendant was on-duty at the time of the accident;
- The manufacturer of a defective product, if the defect contributed to your injuries;
- A commercial truck driver, who is likely to be very well-insured; or
- An on-duty Uber or Lyft driver, who is also likely to be well-insured.
Other third-party defendants may be available as well, depending on the facts of your case.
The Comparative Fault Limitation
California will reduce the amount of your total damages award – including pain and suffering damages – if you were partly to blame for the accident. If your claim goes to court, the court will assign you a percentage of fault and subtract that exact percentage from your damages. This could leave you with little beyond the amount necessary to pay your medical bills.
The Medical Malpractice Limitation
California has instituted a cap of $250,000 on non-economic damages in medical malpractice claims. Since pain and suffering damages are non-economic damages, this limitation could affect you if you are asserting a large medical malpractice claim. It does not affect economic damages or personal injury claims other than medical malpractice claims.
Workers’ Compensation Claims
A California workers’ compensation claim differs from an ordinary personal injury claim in the following ways:
- Claims are limited to work-related injuries;
- You don’t have to prove fault to win;
- You cannot take your claim to court; and
- You cannot claim pain and suffering damages.
There is a loophole that allows you to file an ordinary personal injury lawsuit even for a work-related injury if the defendant is not your employer.
The Jury Wild Card
Juries are made of people, and people are complex and unpredictable. Although California juries are notoriously plaintiff-friendly, there is no way to know for sure what an individual jury will do. Empaneling a jury is like placing a Joker in a deck of cards.
A Lawyer Can Help
If you have a large pain and suffering claim, the services of an experienced personal injury attorney are indispensable. Your lawyer should be able to use all of the foregoing factors to calculate the real value of your pain and suffering damages.
At M&Y Personal Injury Lawyers, we have been fighting evasive defendants and stingy insurance companies since 2004. We have won numerous multimillion-dollar case resolutions, and thousands of clients have benefited from our representation.
Leave the hard part to use while you focus on recovering your health. Contact M&Y Personal Injury Lawyers for a free consultation. We look forward to hearing from you.