Everyone knows what pain is, and everyone knows what suffering is. Outside of the legal field, however, not all that many people know what “pain and suffering” is. Actually, pain and suffering is a component of non-economic damages used to calculate the value of a Texas personal injury claim.
The calculation of pain and suffering damages is an important topic – in many cases, pain and suffering damages add up to much more than 50% of the total value of a claim. What complicates matters is the multiplicity of ways there are to calculate a pain and suffering claim.
Another problem is the ambiguity of assigning a specific dollar value to something so nebulous as pain and suffering. Continue reading to learn more about this important form of personal injury compensation.
Popular Calculation Methods
Here’s a look at some of the more popular ways of calculating pain and suffering damages.
The Multiplier Method
Typically, the multiplier method starts by calculating economic damages—medical expenses, lost earnings, and other easy-to-count damages. The next step is to come up with a multiplier, which is typically a number between 1.5 and 5.
The more severe the pain and suffering, the higher the multiplier. Finally, multiply the multiplier by the economic damages to come up with a figure for pain and suffering.
Suppose your economic damages are $80,000, and your multiplier is 3. That adds up to $240,000 for pain and suffering damages alone. Add to that economic and other non-economic damages to arrive at your total compensation. It will be $320,000 even if you assume zero non-economic damages outside of pain and suffering damages.
The Per Diem Method
“Per diem” means “per day” in Latin. Under the per diem method, you start with the date of your accident and end with the date you reach maximum medical improvement (MMI). MMI is the point where your doctor is willing to state that you have recovered as much as you ever will. This could mean a full recovery, or it could mean permanent disability. Either way, reaching MMI makes it a lot easier to calculate your total medical bills.
Once you calculate the total number of days from the date of your accident until you reach MMI (182 days, for example), you need to calculate a dollar value for each day. Suppose, for example, you value your pain and suffering at $200 per day. Multiply your daily value by your total number of days of suffering, and you get ($200 X 182) = $36,400.
Software Algorithms Such as Colossus
Insurance companies love to use software algorithms, such as Colossus, to calculate the value of pain and suffering. For example, they might call it their “pain and suffering calculator.” The problem is that the estimates provided by any type of software algorithm favored by an insurance company will almost certainly issue you a ‘lowball’ offer that you definitely shouldn’t accept. Nevertheless, you might use it for negotiations as a starting point, not an endpoint.
If your case proceeds far enough down the line, a jury will probably have the final word on your pain and suffering claim. Unless you reach a settlement, you will have to go to trial, and a trial ends with a jury verdict.
Juries enjoy broad discretion in setting pain and suffering. In fact, this discretion is almost unlimited except where Texas law specifically limits it.
Another way of calculating pain and suffering damages is to look at precedent – meaning, how much money have courts awarded claimants in similar positions? You can’t look at settlements, as settlement amounts are not a matter of public record.
Realistically, most pain and suffering awards are determined by negotiation. A lot of factors can go into a negotiated value for pain and suffering. The expectation of how a court would react to the claim is only one of these considerations.
Another factor, among many possible factors, is the relative likelihood of winning or losing at trial. Even the likability of the plaintiff might play a role.
Factors That Go Into a Pain and Suffering Calculation
Below is an abbreviated list of some of the frequently considered factors that juries, lawyers, and insurance companies consider when determining the value of a pain and suffering claim.
The Severity of Your Injuries
You’re likely to receive more money in pain and suffering damages if your losses are catastrophic than if they are mild. After all, that’s what “pain and suffering” damages are for. A catastrophic injury, such as a serious brain or back injury, can bring in astronomical amounts under just the right circumstances.
The Length of Your Recovery
Your pain and suffering damages will likely be maximized if you suffer permanent injuries. Even a slow but complete recovery can significantly add to the value of your compensation. Imagine the value of a years-long recovery using the per diem method, for example.
The Impact on Your Quality of Life
How has your injury affected your ability to work, enjoy hobbies, exercise, and socialize? Even though your diminished ability to enjoy these activities does not constitute “pain and suffering,” you might end up with more money on account of them even though they don’t strictly fit the legal definition.
Emotional distress such as depression. PTSD, phobias, and more., are other factors that could increase your recovery for “pain and suffering” even though they fall outside the legal definition.
For instance, a lifelong fear of dogs due to a dog bite might result in a large award for pain and suffering, particularly for a child.
Your Age and Health Prior to the Accident
The younger and healthier you were before your accident, the more pain and suffering compensation you are likely to receive. This is especially true if you seem far less healthy after your accident than before.
Medical experts, occupational therapists, and others can provide testimony or written reports that can help you establish the degree of your pain and suffering. A third party always helps, especially if they have no personal stake in the outcome of your claim. They can provide testimony to help quantify your pain and suffering level and impact.
Unlike many other states, Texas applies statutory maximums to non-economic damages in certain instances. Texas limits the amount of non-economic damages (but not economic damages) in medical malpractice claims and in claims against state or local governments. These caps apply to total non-economic damages, not only the pain and suffering component.
A Skilled Fort Worth Personal Injury Lawyer Can Make a World of Difference
How much is your pain and suffering worth? The short answer is “Whatever amount your lawyer can convince the opposing party or the court it’s worth.” Indeed, the quality of your lawyer never matters more than when you’re trying to calculate the value of a quantity as ambiguous as non-economic damages.
Schedule a free initial consultation with a qualified Fort Worth personal injury lawyer as soon as you become aware that you might have a claim.