When people are injured in accidents because of the negligent actions of other people, companies, or governmental agencies in California, they may be entitled to recover damages by filing personal injury lawsuits. People who file injury claims may be awarded compensatory damages for the losses that they have suffered. The compensatory damages that might be recoverable include monetary awards for the economic and non-economic losses that the plaintiffs have suffered because of their injury accidents.
Economic damages include your pecuniary losses, including your past and future medical expenses, wage losses, property losses, and others. While your economic damages may be fairly easy to determine, your non-economic losses can be more difficult to calculate. One of the most common types of non-economic damages in a personal injury claim is pain and suffering damages. Here is what you need to know about these types of damages and how they might be calculated.
What is pain and suffering in a personal injury lawsuit?
Pain and suffering damages in a personal injury lawsuit refer to a variety of different types of intangible losses that you might suffer because of the negligent conduct of someone else. According to the Steven M. Sweat Personal Injury Lawyers, pain and suffering damages might include the following types:
- Past and future physical pain because of your injuries
- Past and future mental anguish because of your injuries
- Past and future losses of your ability to enjoy life
- Disability or physical impairment
- Scarring and disfigurement
- Emotional distress
- Anxiety and psychological trauma
Since these losses are intangible, they are much more difficult to value than your economic losses.
How is the value of pain and suffering calculated?
According to most state laws, there is no set formula. For example, under California Civil Jury Instruction No. 3905A, there is no standard method to calculate pain and suffering damages. Instead, juries are instructed to determine the amount to award based on the evidence that they are presented in the case and their common sense. The vast majority of personal injury claims are settled before they go to trial. In these cases, personal injury attorneys and insurance companies might use formulas to determine the amount that should be awarded for pain and suffering damages. Two primary methods are used by attorneys and insurance companies, including the multiplier method and the per diem method. A third method, called the job description method, is less common. Here is some information about each of these methods that may be used to calculate the amount of pain and suffering damages that should be awarded in a personal injury case.
The multiplier method is a common choice for personal injury attorneys and insurance companies when they are trying to determine the value of pain and suffering damages in personal injury claims. Under this method, your attorney will calculate the value of your past and future medical expenses. That amount will be multiplied by a factor ranging from one to five and added to the total of your economic damages to arrive at the value of your pain and suffering damages. A higher multiplier will be selected if your injuries are severe, and your likelihood of fully recovering is low. If your injuries are minor, and you are likely to recover fully after a couple of months, the factor chosen will be lower.
For example, if you were paralyzed in a car accident and will not be able to return to your job and will face a lifetime disability, your attorney may choose a multiplier of four or five. If you instead suffered whiplash injuries and will likely recover after three or four months, your attorney might choose a multiplier of two. In most cases, the insurance company will choose a lower multiplier than your lawyer, and your attorney and the company will then negotiate to try to reach a settlement agreement. To show the insurance company why a higher multiplier should be used, your lawyer might work with experts to demonstrate the extent and severity of your injuries, your prognosis, and your future anticipated wage losses.
The per diem method
The per diem method is another way that insurance companies and personal injury lawyers might calculate pain and suffering damages. Under this method, your lawyer might choose a daily dollar amount and multiply it by the number of days from your accident until you reach your maximal medical improvement. For example, if you took 180 days to reach your maximum medical improvement, your attorney might multiply that by $100 or $18,000 in pain and suffering damages. This would be recoverable on top of your economic damages for your total settlement offer.
The job description method
The job description method of calculating pain and suffering damages is not used very often. Under this method, your attorney and the insurance company would right out your injuries like they might appear in a job description and then determine how much a reasonable person might be expected to be paid for going through the experience. For example, they might try to figure out how much someone might ask to be paid to remain in a wheelchair for a specific number of days or months.
Pain and suffering damages and insurance policies
If the value of your pain and suffering damages together with your economic losses exceeds the policy limits of the defendant’s insurance policy, your damages will be limited to the policy limits. However, if the defendant has an umbrella policy or other coverage types available, you might be able to recover all of your damages by tapping into the additional sources of recovery. Your lawyer will investigate your case to identify all of the insurance policies and recovery sources that are available to pay your damages.
Why is it important to get help from an attorney for pain and suffering?
You should hire a lawyer any time that you are injured in an accident that was caused by someone else. When you are injured, insurance companies will begin their investigations soon after the accidents to gather evidence. They often have teams of defense attorneys who are ready to defend against claims. Hiring a lawyer helps to place you on more equal footing so that you can protect your rights to recover compensation.
Insurance companies may try to reach out to accident victims soon after their accidents and extend early settlement offers. These offers frequently do not include reasonable compensation for pain and suffering damages and may also not include appropriate amounts for your future economic losses. If you accept an early settlement offer that is unreasonably low, you will not be able to ask for more money later to cover your additional losses. An attorney can help you to properly value your claim to help you to make certain that you recover fair compensation for all of your losses.