Understanding how pain and suffering damages in a personal injury claim/lawsuit are reached takes a bit of thought — not only in regard to calculating them, but also as to the larger issue of determining pain and suffering within the context of the total damage award.
There are two types of damages in personal injury law: economic (called “special damages” in Kentucky) and non-economic “general” damages. Special damages are easy to figure out because they’re calculable and very straightforward: assets (income) and debts (medical bills).
But general damages – of which pain and suffering is a significant part – are subjective. Any two people could assess the value of pain and suffering differently. So what’s the answer? What factors influence the subjective task of coming up with a fair compensation amount for an injured accident victim’s pain and suffering?
Types of Pain and Suffering
Physical – Physical pain and suffering is the “measurable” pain caused by the victim’s injuries from the accident. It includes the agony and discomforts the victim has suffered since the injury and any pain which is expected in the future. The pain directly associated with permanent disfigurement, chronic pain, and physical limitations regarding normal activities are also considered.
Mental/Psychological – The other type is emotional suffering and mental trauma, such as depression and feelings of anguish. Mental pain and suffering may arise from the victim’s physical injuries. Having to endure long periods of physical pain and trauma from the incident are legitimate indicators of accompanying emotional suffering which also deserve compensation.
Calculating Pain and Suffering
Courts and insurance companies have a couple of ways to calculate victim pain and suffering.
- The Multiplier Method: All present and future medical expenses are added; then a “multiplier” is used to establish an amount. The multiplier depends on the severity of the injuries and can range from 1.5 on the low end to 4 or 5 for extremely severe, debilitating injuries.
- Per Diem Pain and Suffering: This option takes the number of days you experience pain, then multiplies it by your pain “rating,” usually on a scale of 1-10, with 10 being the most severe.
Another variable when calculating pain and suffering is whether your behavior helped cause the accident. Kentucky uses a comparative negligence system. So depending on the percentage of fault you share, your total damage award – including pain and suffering – could be lowered.
Document Your Pain and Suffering
Being able to prove your pain and suffering claims can be tough. The doctors who treat you and supporting medical experts hired by your attorney can provide good documentation that cannot be ignored by the defendant’s insurance company, or the courts if your claim ends up in civil court. Assessments made right after an injury and during all follow-up doctor visits present a clear case in your favor for legitimate and fair pain and suffering compensation. In addition to collecting well-documented medical records, creating an objective “journal” which chronicles your degree of pain can help to establish legitimate context for review of your claim by a jury or insurance company.
Personal injury victims benefit from having as much as possible of the following evidence to support their legitimate pain and suffering claims:
- Your “journal” which also documents everything you experience due to the injury, including symptoms, services and care received
- Medical records
- Proof of lost wages
- Receipts for prescription and any over-the-counter pain medications
- Statements from mental health professionals and other treating medical experts, attesting to the legitimacy of your pain claims.
In the end, if the injured victim is a good witness and has a reputation for credibility if their testimony is clear, consistent and is supported by a doctor or medical expert’s objective diagnosis and prognosis, the chances of receiving reasonable compensation for pain and suffering can be quite favorable.
If you or a loved one has suffered an injury and you are considering your legal options, we encourage you to reach out to Billy Johnson. Calculating pain and suffering might seem overwhelming, but we help our clients determine an amount that fits their needs. Contact us today to schedule a free consultation.