How Do Lawyers Calculate Pain and Suffering?
If you’ve been harmed because of another person’s actions (or inaction), it can change your life. Overcoming injuries not only takes a toll physically, but also mentally and emotionally. The good news is there are legal avenues to help you get compensated for the less tangible mental and emotional aspects of an injury, often called “pain and suffering.” In this article, we’ll explain everything you need to know about this legal term, including how lawyers calculate pain and suffering.
What Is “Pain and Suffering" as a Legal Concept?
"Pain and suffering" is a legal term used in personal injury cases to refer to the physical and emotional distress a person experiences as a result of an injury or harm.
Pain and suffering is a form of non-economic damages, which are intangible losses that don't have a specific dollar amount associated with them. (In contrast, economic damages relate to defined financial losses such as lost wages and medical bills. Because there is no predetermined value, pain and suffering—and all types of non-economic damages—is more challenging to quantify, but the goal is to fairly compensate the person for the non-monetary aspects of their injury.
In a legal context, pain and suffering can include:
Physical Pain and Discomfort
This refers to the actual physical pain resulting from injuries. It can be acute, chronic, or both, and includes not only the pain experienced immediately after the injury, but also any ongoing discomfort or pain that may persist as a result of the injury. Physical impairment or disability, scarring, and disfigurement are also included in this category.
Emotional and Mental Suffering
This includes a wide range of psychological impacts that an injury can have on a person: emotional distress, anxiety, depression, loss of enjoyment of life, fear, anger, humiliation, and more.
In What Situations Can Pain and Suffering Damages Be Awarded?
Pain and suffering damages can come into play in various legal situations, but are primarily awarded in personal injury cases or torts where a person has suffered harm due to the actions or negligence of another party. Some common scenarios include:
- Car Accidents: If a person is injured in a car accident due to the negligence of another driver, they may be entitled to pain and suffering damages for their physical injuries and any emotional distress caused by the accident.
- Medical Malpractice: When a healthcare professional's negligence leads to a patient's injury or worsens their condition, the patient might receive compensation for the pain and suffering endured as a result of improper care or treatment.
- Slip and Fall Accidents: In cases where a property owner's negligence leads to someone slipping, tripping, or falling and sustaining an injury, the injured party may claim pain and suffering damages.
- Product Liability: If a person is injured by a defective or dangerous product, they can sue the manufacturer or seller for pain and suffering resulting from their injuries.
- Workplace Accidents: Employees injured at work due to unsafe working conditions or accidents may seek compensation for pain and suffering, although this can sometimes be complicated by workers' compensation laws.
- Assault, Battery, and Other Intentional Torts: Victims of intentional acts such as assault, battery, or other intentional torts can claim pain and suffering damages for both the physical injuries and the emotional trauma they endured.
- Wrongful Death: In more extreme circumstances where negligence or an intentional act results in death, the deceased's family may be entitled to recover damages for the pain and suffering their loved one endured before death, as well as their own emotional suffering due to the loss.
In all these situations, the plaintiff (the injured party) must typically prove that the defendant's actions were the direct cause of their injuries and the resulting pain and suffering.
How Do You Prove Pain and Suffering?
Proving pain and suffering isn’t straightforward, but an experienced personal injury lawyer will know how to demonstrate the extent and impact of a plaintiff’s injuries. This is an important element of the claim because if the evidence is lacking, it will be difficult for the courts and your lawyer to calculate pain and suffering and will lower the award amount.
While the specific requirements can vary based on jurisdiction and the case specifics, several key criteria generally need to be met:
Medical Documentation
One of the most critical pieces of evidence is detailed medical records that document the injuries, the treatment received, and the prognosis. This includes records of hospital stays, doctor's visits, prescriptions, physical therapy, and any other medical interventions.
Expert Testimony
Testimony from medical experts and mental health professionals to help establish the severity of the injuries, the pain experienced, and the future implications of the injuries on the individual's life.
Personal Testimony and Documentation
The plaintiff's own testimony about their pain and suffering. This includes personal journals, diaries, or videos documenting their daily struggles, pain levels, and the ways in which the injuries have impacted and changed their life.
Witness Testimony
Testimonies from family, friends, co-workers, or others who can speak to the plaintiff's condition before and after the injury.
Photographs and Videos
Visual evidence of the injuries, their immediate aftermath, and the progression of recovery.
Psychological Evaluation
Evaluations by mental health professionals regarding emotional or psychological trauma.
Economic Damages
Although not directly related to pain and suffering, proof of economic damages like medical bills and lost wages can support the claim by establishing the severity of the injury and its impact on the plaintiff's life.
Causation
Perhaps the most important criteria in a personal injury case is the plaintiff must prove that the pain and suffering is directly linked to the incident in question, and the defendant's actions (or inaction) caused the injury.
How Do Lawyers Calculate Pain and Suffering?
In personal injury cases, there isn't a universal formula insurance companies, the courts, and lawyers use to calculate pain and suffering. But two accepted methods are typically applied to arrive at a monetary value for these non-economic damages:
Multiplier Method
This method involves adding up all the actual economic damages (like medical bills, lost wages, and other quantifiable losses) and then multiplying that sum by a certain number (the multiplier) to account for pain and suffering.
The multiplier typically ranges from 1.5 to 5 or more, depending on factors such as the severity of the injury, the recovery time, the impact of the injury on the plaintiff's lifestyle, and the level of fault of the defendant.
For example, if a person has $50,000 in medical bills and lost income, and the multiplier chosen is 3 (based on the severity and impact of the injury), the pain and suffering damages might be calculated as $50,000 x 3 = $150,000.
Per Diem (Daily) Method
The Per Diem method is the other way courts and lawyers calculate pain and suffering. It assigns a certain dollar amount to each day, from the day of the injury until the plaintiff reaches maximum medical improvement or is fully healed.
The daily rate could be based on the plaintiff's actual daily earnings, arguing that a day of pain is at least worth a day's pay. For instance, if a person makes $150 a day and the pain and suffering are deemed to last for 180 days, the calculation would be $150 x 180 = $27,000 for pain and suffering.
In Oklahoma, there is no limit on the amount of non-economic damages you can seek. While the potential awarded amount will not be capped, it will be reasonable in relation to the level of pain and suffering you successfully prove in your case.
Keep in mind that both calculation methods are starting points for negotiations. Attorneys, insurance companies, and the courts consider the specifics of each case, and the final amount is often reached through negotiation or litigation. Your attorney will guide you on the most appropriate method and the likely range of pain and suffering damages to expect. Remember that both methods are highly subjective and awards vary significantly from case to case.
Learn More About How Lawyers Calculate Pain and Suffering
Given the subjective nature of pain and suffering, it’s crucial to present a comprehensive and compelling case so you get the compensation you deserve. That starts with hiring an experienced personal injury attorney to guide you through the process and Oklahoma Injury Guy has years of experience in this arena. Contact us today for a free case evaluation. We’ll advise you on whether you have a case, how lawyers calculate pain and suffering, and help you get a resolution to your injury.