How to Determine Pain and Suffering in a Car Accident Case

After a car accident, besides recovering from your injuries and getting your car back on the road, a key concern might be how to get compensation for the harm you've suffered. And if you were in a serious accident, you could be experiencing a significant amount of "pain and suffering," which is a common category of losses ("damages" in the language of the law) that's not all that easy for most car accident injury claimants to understand right off the bat.

In this article, we'll take a look at:

• what "pain and suffering" is, from both a physical and mental standpoint
• ways to calculate damages relating to pain and suffering, and
• how to recover pain and suffering damages from the at-fault driver (or the insurance company).

What Is Pain and Suffering in a Car Accident Case?

Pain and suffering doesn't have a universal definition within the context of personal injury law. The term generally refers to the physical and/or mental pain someone endures because of someone else's careless or wrongful act. It can include:

• physical pain that comes from physical injuries
• emotional pain relating to stress, anxiety, mental anguish, or other psychological effects that stem from the negligent or intentional act of another
• physical discomfort that comes from necessary medical care to treat injuries from the tort, or civil wrong.

Some forms of pain are not clearly evident. A good example might be soft tissue damage or emotional pain. So sometimes a medical professional will examine the claimant to find symptoms of pain, such as a reduced range of motion in an arm or leg. Even when the presence of pain is obvious, there can still be a dispute as to the severity of the pain. Pain is inherently subjective, and pain that might send someone to the doctor might be something another individual shrugs off as a minor annoyance.

It's probably no surprise that unlike compensation for medical bills, lost wages, or property damage, there's no quick or easy way to identify and calculate pain and suffering damages. But there are certain methods that insurance adjusters and personal injury lawyers often use.

How Is Pain and Suffering Calculated?

There are two general ways to come up with a ballpark dollar figure that might be used as a starting point to capture a car accident claimant's pain and suffering.

The "Multiplier" Method

The multiplier method takes a claimant's total accident-related medical bills and multiplies them by a certain number—the multiplier, which has traditionally been two or three. But in recent years insurance companies have been shifting away from automatically using a standard multiplier. Instead they've been using their own special formulae to come up with their own multiplier. This formula would presumably factor in certain injury-related variables from a car accident, like:

• the severity of the claimant's injuries
• how much medical treatment is necessary to treat those injuries, now and in the future
• whether the claimant will suffer any long-term or permanent effects of their car accident injuries, and
• whether the claimant's injuries have limited their ability to perform daily activities or pursue their normal interests.

Sometimes other factors come into play, like any gross negligence on the part of the at-fault driver.

So, if the car accident claimant's medical bills total $4,000, and a multiplier of 2 is used—because while the injuries were serious the claimant made a full recovery within a month—the rough value of the claimant's pain and suffering might be $8,000 (the $4,000 in medical bills times 2).

The Per Diem Method

The daily rate method counts the number of days an individual suffers from the effects of a car accident, and multiplies the total days by a given monetary value. There's no set way to determine this daily monetary value, but a good starting point might be someone's average daily wage.

The important thing to consider is that the daily monetary value should be whatever amount the claimant can reasonably argue in favor of. For instance, if someone earns minimum wage, the amount of money they earn each day could be relatively small. But if they're also the primary caretaker of several children and do most of the household chores, then this daily monetary value could be much higher.

Regardless of the calculation method used, the more medical treatment or recovery time required for a car accident injury, the more money an insurance company will usually assign to pain and suffering. A more serious injury requiring more medical care and/or recovery time will often be evident in the claimant's medical records. But support can also come from other sources. For example, statements from a work supervisor or family member can explain how the claimant can't work, do chores around the house, or play with the kids as they did before the accident.

How to Seek Compensation for Pain and Suffering After a Car Accident

After a car accident, the two primary avenues available to receive compensation are filing an insurance claim and initiating a civil lawsuit.

Filing an Insurance Claim After a Car Accident

Filing an insurance claim is the most common way to obtain compensation for the full spectrum of losses after a car accident, including pain and suffering compensation. The first step usually involves contacting your car insurance company. (Note that if you're in a no-fault state, you can usually only recover pain and suffering damages from the at-fault driver's insurance company if your injuries reach a certain threshold.)

The second step requires you to tell the insurance company what you're asking for (often in a demand letter) and providing the information to support your request. This step requires more than just asking nicely and giving the insurance company a demand amount. Instead, you'll need to provide evidence to support your claim, including:

• medical records
• hospital bills
• counseling or therapy bills
• photographs of your injuries
• description of how your injuries have affected your daily life
• receipts for out of pocket prescription drug or medical equipment costs
• notes from your employer explaining lost time at work
• statements from you or anyone close to you explaining the complications and after-effects you've had to deal with and the impact they've had on your daily life.

Even after you've provided the above-listed information, the car insurance company might ask for more evidence or documentation to support your settlement demand.

The third step is negotiating a settlement with the car insurance company. At this stage, it's not unusual for you and the insurance company to be pretty far apart when it comes to the value of your pain and suffering damages. If it seems like the insurance company isn't going to budge during negotiations, it might be time to consider hiring a car accident lawyer. Not only do experienced legal professionals know how to negotiate with car insurers, they also know how to protect your rights should you need to file a lawsuit. A car accident lawyer can also keep you from saying or doing the wrong thing that might hinder your ability to win that lawsuit.

Filing a Car Accident Lawsuit

Filing a civil lawsuit is the second approach to getting compensation for pain and suffering. If you decide to sue, you'll normally sue the driver responsible for your injuries even though it'll be that driver's car insurance company that pays out any pain and suffering award.

Unlike filing an insurance claim, where hiring an attorney is sometimes recommended, filing a personal injury lawsuit all but requires an attorney's help. An experienced lawyer understand the litigation process and can ensure your eligibility to file a lawsuit. For instance, can you still file a civil action, or has the statute of limitations deadline passed?

Because of the time and money required to go to court, you'd normally only choose to sue if there's a significant amount of money at stake. Besides economic damages and pain and suffering, another potential component of a possible damage award or settlement offer is loss of consortium.

Loss of Consortium In Car Accident Cases

Loss of consortium in a personal injury case is similar to pain and suffering in one major way. Specifically, it refers to legal compensation for intangible harm suffered as a result of someone else's intentional or negligent act. But loss of consortium differs from pain and suffering in that it's a cause of action only available to a spouse or close family member of the person who got hurt. It's also unique because it compensates the spouse or close family member for lost or reduced attention, affection, and/or intimacy from the plaintiff. Learn more about how a loss of consortium claim works.

Pain and Suffering Settlements After a Car Accident

The vast majority of disagreements about car accident insurance claims do not end up in trial. Neither side wants to spend the time and money litigating, so most insurance claims settle as a part of the claims process. How long this can take depends on the reasons for the disagreement and how open each side is to compromise. But most car insurance claims settle anywhere from a few weeks to a few months after filing a claim. Learn more about how long it might take to settle your personal injury claim.

One of the biggest factors that can affect the settlement amount is whether the insurance company follows the law when handling the claim. State laws and regulations require insurance companies to handle claims a certain way and within a certain amount of time. If they don't, they can face legal trouble if the mistake was made in "bad faith." This can result in a separate legal action against the insurance company (and not the at-fault driver) where damages can exceed what the claimant was asking for as a part of the pain and suffering claim.

This is another reason why having an attorney during a contested insurance claim is a good idea. A lawyer can spot instances when the insurance company might be skirting the limits of the law, then use that potential wrongdoing as leverage to get a more favorable settlement from the insurance company.

If the insurance claim ends up as a lawsuit, settlement can occur at any time, even on the day of trial. When the case settles will depend on any number of factors, such as:

• the strength of either side's legal case, including how sympathetic either side's position is
• how far apart the parties are in the demand and offer amounts
• the cost of litigation (to both sides)
• how sympathetic a judge or jury might be to the plaintiff, and
• whether either side learns of a major development in the case.

Getting Legal Help After a Car Accident

If you think you might have a claim for pain and suffering following a car accident, it's a good idea to at least talk to a personal injury lawyer. Whether it's getting the best result from the insurance company, or presenting your best case in court, an attorney will act with your best interests in mind at every stage of your case.

You can use the features right on this page to connect with a car accident lawyer near you, or learn more about how an attorney can help with your car accident case.