People who live in an at-fault state can seek various damages after being in an accident that was not their fault. Most people are aware that they can demand compensation for medical bills, lost wages, and property repairs, which are all forms of economic damage. However, the question of noneconomic damage like pain and suffering is still a tricky concept for many.
Unlike economic damage, noneconomic damage is not so easily tracked and cataloged. There will be no bill handed to you that says you have suffered $10,000 in emotional trauma because of your accident or crash. How can you fairly calculate what you should be paid by the liable party for your pain, suffering, and hardship if there is no tangible receipt to track those damages? The answer is not straightforward because there isn’t one required method that attorneys and insurance providers must use when calculating noneconomic damage.
Two Methods to Calculate Pain and Suffering
There are a few ways that an attorney can use to calculate noneconomic damage based on a client’s pain, suffering, and hardship. Lawyers need to decide on which method best fits the situation and most accurately reflects what the client is going through.
Although, there are two calculation methods used more often than others:
- Multiplier: The multiplier method takes the total compensation owed for economic damage – i.e., medical bills, lost wages, property damage, etc. – and multiplies it by a factor to determine the amount of noneconomic damage owed. The multiplier used will increase based on the severity of the client’s pain and suffering. For example, if a client was in a truck accident and suffered a back sprain that healed within a month, then the multiplicative factor might be 3. But a motorcycle accident victim who suffered a traumatic brain injury (TBI) might have a multiplicative factor of 10 or more in their case. Imagine your economic damage totaled to $20,000 and your multiplicative factor was 5. In this situation, your noneconomic damage total would be $100,000, and all damages together would be $120,000.
- Duration: The duration method decides a flat amount of noneconomic damage you should be paid based on pain and suffering and then multiplies that amount by the total number of days you have suffered. Days are counting beginning on the date of your accident to the date of signing a settlement agreement. For example, you were in a bad bicycle accident that left you with several serious injuries that prevent you from going to work or enjoying your hobbies. Your attorney determines your pain and suffering is valued at $1,000 a day, and the insurance company does not offer a settlement until 100 days after the accident. Using the duration method, the value of just your noneconomic damage for your pain and suffering would be $100,000, or $1,000 times 100.
Why You Shouldn’t Use a Settlement Calculator
When questioning how much compensation you should be given for your pain and suffering, you might come across a settlement calculator tool, which is sometimes offered by insurance companies and some law firms. As tempting as it might be to plug in a few numbers into a settlement calculator, you shouldn’t. Settlement calculators are notorious among personal injury lawyers for being too basic and too generalized.
Settlement calculators will not consider two important factors:
- Liability: The cause of your accident – whether you were hurt in a car accident, slip-and-fall accident, or another sort of personal injury incident – matters in an at-fault state. Your liability will reduce the amount of compensation you can receive for both economic and noneconomic damage. The more liable you are found to be, the less you can collect from the other at-fault parties. Settlement calculators usually do not include a field for liability because this percentage is often not even known until well into the claim.
- Actual hardship: Settlement calculators cannot accurately reflect just how much hardship you have experienced because of your injuries and trauma. Everyone and their lives react to an injury differently. Someone who is unemployed and suffers a broken leg will have a much different experience physically and emotionally recovering from that injury when compared to a single parent with two jobs and three kids, for example. The mental anguish and exhaustion that single parent feels will arguably be much worse than the other, so they should be given a greater amount of noneconomic damage.
How is Pain and Suffering Defined?
Another reason why calculating pain and suffering damage is tricky is that the definition of pain and suffering can vary from state-to-state and context-to-context. In general, pain and suffering is described as “mental anguish” that affects someone after an accident or due to an injury. But even the term “mental anguish” is too vague.
Will your claim consider depression caused by missing work and losing mobility as a form of mental anguish? What about the anxiety you feel whenever driving after getting hit by a drunk driver? Is the overwhelming embarrassment that you feel when in public due to a permanent scar caused by your accident also pain and suffering? The answers to these questions can change from one case to another, further adding to the complications of calculating fair noneconomic damage.
Proving Your Pain and Suffering
Insurance companies hate paying noneconomic damage because they think paying for an intangible injury is unjust or unfair. You can expect that the insurance company answering your injury claim will want to challenge the extent of your pain and suffering however they can. To give them a difficult legal battle, you should be prepared to prove that your pain and suffering is real and that it has affected your life in the way you say.
Documentation that can be used to prove the extent of your pain and suffering:
- Medical records: Medical experts can give prognoses about how much they think your life will change because of your injuries, especially after you reach your maximum medical improvement (MMI) or the point at which you are no longer expected to heal, regardless of what medical treatments or tools are used.
- Employer statements: Your employer or supervisor can give written statements about how your work has needed to be modified due to your injuries. They should also note if your earning capability has been reduced due to being no longer able to complete tasks required of higher-paying positions in the company or industry.
- Family and friend testimonies: People who are close to you can give testimonies about how your life has changed for the worse since your accident. They will know best what you were like before and how you act now. Oftentimes, close friends and family members are the first to notice a decline in another’s mental health.
What is the Numeric Rating Scale for Pain?
Perhaps one of the most important pieces of tangible evidence to prove your pain and suffering is a Numeric Rating Scale for pain, or NRS-11, often used by medical providers. If you have been seriously injured in an accident, then you have almost certainly been asked to rate your pain using the NRS-11 throughout your treatments. The scale typically includes cartoon faces that gradually shift from a smile at “0 or No Pain” to a grimace at “10 or Worst Pain Imaginable.”
As your medical treatments progress, your medical provider should be taking notes about where you are self-reporting your pain on this scale. Doctors will usually ask multiple times in a single session to make certain the patient is being honest and accurate about their self-reported pain. Medical notes that show your levels of pain across an extended period of time can be powerful tools when used by an experienced personal injury attorney. If you have consistently reported that you were feeling pain on the higher end of the scale despite months of medical treatments, then your lawyer will have an easier time arguing that the accident has made a traumatic and life-changing impact that must be answered with a sizeable amount of noneconomic damage.
Hiring an Attorney for Pain and Suffering Damage
The duration method for calculating pain and suffering damage will often achieve a value that far exceeds the total economic damage you are owed. The multiplier method guarantees it will. With so much money on the line, the defending insurance company will not sit down and allow your claim to progress smoothly. Furthermore, the difficulty of calculating a fair amount of noneconomic damage only adds to the complexity and cloudiness of the situation.
If you want to demand the right amount of pain and suffering damage and avoid the stress of challenging an insurance company on your own, then you should hire a personal injury attorney soon after your accident. The Law Offices of Harold D. Carr offers injury claim representation to people throughout Washington. We have gone head-to-head with major insurers for decades, which gives us more experience, insight, and successes than most other law offices can hope to boast. Discover your legal options and how we can make your claim easier for you by dialing (800) 520-6617 to schedule a free case review.