Most people have heard the term “pain and suffering,” but they may not necessarily know that it is a key component of many a personal injury case. But what is pain and suffering from a legal perspective, and more importantly, how is it calculated for purposes of an injury-related insurance claim or lawsuit?
What is “Pain and Suffering”?
There are two types of pain and suffering: physical pain and suffering and mental pain and suffering.
Physical pain and suffering is the pain of the plaintiff’s actual physical injuries. It includes not just the pain and discomfort that the claimant has endured to date, but also the detrimental effects that he or she is likely suffer in the future as a result of the defendant’s negligence.
Mental pain and suffering results from the claimant’s being physically injured, but it is more a by-product of those bodily injuries. Mental pain and suffering includes things like mental anguish, emotional distress, loss of enjoyment of life, fear, anger, humiliation, anxiety, and shock. Mental pain and suffering is basically any kind of negative emotion that an accident victim suffers as a result of having to endure the physical pain and trauma of the accident.
Very significant mental pain and suffering can include anger, depression, loss of appetite, lack of energy, sexual dysfunction, mood swings, and/or sleep disturbances. Even more severe mental pain and suffering can even constitute post-traumatic stress disorder (PTSD).
Mental pain and suffering, like physical pain and suffering, includes not just the effects that the victim has endured to date, but also the mental pain and suffering that he/she will more than likely suffer into the future.
Examples of Pain and Suffering
Let’s look at a couple of examples of how car accident victims might experience pain and suffering.
First, let’s take a more severe case. Let’s say that someone got into a car accident that caused multiple broken bones along with a severe concussion. That is a pretty serious accident. As a result of these injuries, the claimant became depressed and angry, had difficulty sleeping, and experienced significant loss of appetite. As a result of these problems, the claimant was referred to a psychologist and a therapist. All of these problems are directly related to the accident, and the claimant is entitled to compensation for mental pain and suffering due to the accident.
Mental pain and suffering can sometimes get so bad that it prevents the victim from returning to work even after the physical injuries have healed. In this case, this victim’s depression due to the accident might linger long after his/her broken bones and concussion healed. In such a case, the victim would still be able to claim any damages related to the mental pain and suffering, such as lost income.
Next, let’s look at a less serious example of mental pain and suffering. Let’s say that someone gets into a car accident and suffers back strain. As a result of the back strain, the claimant is prevented from exercising for several weeks, and, during this time, is prevented from running in a marathon that they had been training months for. As a result of missing the marathon, the claimant is angry, frustrated, unhappy, and maybe even a little depressed. This claimant has no need for mental health assistance, but these effects, while comparatively minor, still qualify as mental pain and suffering.
How to Calculate Pain And Suffering
Judges do not give juries much in the way of guidelines for determining the value of pain and suffering in a personal injury lawsuit. There are no charts for juries to look at in order to figure out how much to award. In most states, judges simply instruct juries to use their good sense, background, and experience in determining what would be a fair and reasonable figure to compensate for the plaintiff’s pain and suffering.
You may have heard about a “multiplier” being used in personal injury cases, where pain and suffering is calculated as being worth some multiple of the injured person’s total medical bills and lost earnings (which are called the claimant’s “special damages”).
Often, the “multiplier” is considered to be somewhere between 1.5 and 4, meaning that the pain and suffering is 1.5 to 4 times the value of the claimant’s special damages. However, the “multiplier” concept is only a very rough estimate and does not apply in all personal injury cases. It is most useful in minor injury cases, where the total damages are less than $50,000. But even in small cases, you should be very careful about applying the “multiplier.”
There are many other factors that affect the value of the pain and suffering component of a personal injury case. These include:
- whether the plaintiff is or will be a good or bad witness
- whether the plaintiff is likeable
- whether the plaintiff is credible
- whether the plaintiff’s testimony regarding his or her injuries is consistent
- whether the plaintiff is exaggerating his or her claims of pain and suffering
- whether the plaintiff’s physicians support the plaintiff’s claims of pain and suffering
- whether the jury thinks that the plaintiff lied about anything, even something relatively minor (as a general rule, if a plaintiff lies, the plaintiff loses)
- whether the plaintiff’s diagnosis, injuries, and claims make common sense to the jury
- whether the plaintiff has a criminal record
Republished with Permission © 2014 Nolo.com