If an accident injured you, you may suffer financial and personal losses. The person or entity at fault owes you compensation for your losses so that you can rebuild your life and be made whole.
Medical bills and lost income are easy to compute. However, the pain and suffering resulting from your injuries are harder to calculate but are just as debilitating as financial losses and may affect your life long-term.
Naturally, no amount of money can give you back the life you had, but it can help you face your problems or adjust to life changes. Therefore, to receive full and fair compensation, you must determine the monetary value of your pain and suffering.
What are the damages?
As the name suggests, compensatory damages refer to monetary compensation paid by the person or entity responsible for a victim’s personal injury. There are different types of compensatory damage:
Special damages refer to documented out-of-pocket damages, such as medical and related expenses. In some cases, medical or financial experts help calculate the economic costs of future care. Special damages include reimbursements, out-of-pocket payments, and losses such as:
- Expenses related to medical treatment and rehabilitation, including adaptive medical equipment, home healthcare, and physical therapy
- Lost wages (both due to temporary incapacitation and permanent disability) including tips, bonuses, overtime, perks, and sick and vacation days.
- Damaged or lost property
- Costs related to canceled or altered travel plans
Non-economic damages or general compensatory damages
These damages are more difficult to quantify or verify with a receipt.
They may include:
- Pain and suffering
- Scarring and physical disfigurement
- Reduced quality of life
- Loss of enjoyment of life
- Loss of companionship
Wrongful death is another damage you can claim if a loved one dies in an accident. It includes damages experienced by the deceased from the moment of the fatal injury until their death. It also covers those losses experienced by the deceased’s family.
In California, if an injured person dies, the personal injury claim may proceed, and compensation goes to the person’s estate. Originally, the estate could recover only economic damages incurred before death, such as medical expenses and lost earnings, and in some cases, punitive damages.
However, California law allows the court to award non-economic damages, such as pain and suffering before death. This law only applies to lawsuits filed on or after January 1, 2022.
What do pain and suffering mean?
Pain and suffering is a legal term that refers to physical and mental suffering resulting from an injury. It encompasses the pain and suffering that would not have occurred if another’s negligent actions had not caused your accident.
Pain and suffering are different from other damages because they are mainly intangible or subjective, but they may account for a large percentage of the compensation awarded. Everyone has a different threshold for pain, so an injury affects each person differently.
Pain and suffering also take into account both the present and future. For example, an accident victim who suffered an amputation may suffer from phantom limb pain, which is pain that appears to come from the part of the limb removed. This pain may occur long after the amputation. In addition to physical pain, the victim may also suffer from anxiety, depression, and in some cases, reduced quality of life.
The law recognizes two types of pain and suffering: physical and mental.
Physical pain and suffering
Physical pain and suffering refer to the injured person’s pain and bodily discomforts, such as the pain of a broken bone, headaches, traumatic brain injury, nerve damage, damaged skin or organs, or other physical manifestation of an injury.
In addition to physical pain, the injured person may have permanent physical effects, such as scarring or disfigurement. Testimony from the victim, their friends, family, co-workers, and medical experts may establish the existence and extent of physical pain and suffering.
Mental pain and suffering
An injury victim may also endure mental pain and suffering, which is the mental anguish caused by their injury.
Mental pain and suffering cover a wide range of conditions, such as:
- Mental anguish and pain
- Inability to sleep
- Emotional distress
- Anger or frustration
- Loss of consortium or society
- Loss of enjoyment of life
- Psychological trauma
- Post-traumatic stress disorder
Evaluating pain and suffering damages
Lawyers evaluate the victim’s pain and suffering losses based on evidence, such as:
- Medical records. Therefore, it is crucial to obtain medical attention immediately after an accident for your health and to provide evidence of your injuries.
- Testimony from qualified medical experts.
- Testimony from qualified mental health experts.
- Testimony from family, friends, and co-workers who have seen your pain first-hand and can explain how it has affected your life.
- Journal or diary entries that describe your pain and suffering throughout your recovery.
- Police reports, if applicable, which include essential details about the circumstances of the accident and the parties.
- Photos or videos from the accident scene.
- Documentation of current and future lost income.
Calculating pain and suffering
There is no set formula for determining compensation for pain and suffering in California. Some states limit pain and suffering damages. However, California does not cap recovery for pain and suffering, except in cases that involve medical malpractice, victims injured while committing or fleeing a felony, drivers convicted of a DUI, uninsured vehicle owners, and uninsured drivers.
When you hire a personal injury lawyer, regardless of the method used to calculate your pain and suffering damages, they will fight for the maximum available under the law.
What factors may affect pain and suffering damages?
Generally, no single factor can determine the compensation you deserve for non-economic damages. Typically, pain and suffering damages are more significant in accident cases resulting in severe injuries. Every situation is unique.
What the plaintiff will recover will depend on:
- The nature and severity of the accident victim’s injuries
- Current and future medical, psychological, or psychiatric treatment
- The presence of physical symptoms
- The extent of the physical and mental suffering
- The time frame of recovery
- Visibility of the injury
- The impact the injuries had on the person’s ability to work and continue in their chosen career
- How the injuries have negatively impacted the person’s ability to resume their daily life, perform routine tasks, engage in social and recreational activities, and relationships
- The permanence of the injury/disability
- Their economic damages
- How much has the injury increased the victim’s cost of living while decreasing their income
- Degree of the at-fault party’s liability
- Whether the defendant acted in an intentional or reckless manner
- Whether the evidence presented supports the injured person’s claim
Proving pain and suffering
Insurance companies often dispute pain and suffering. They may claim that you were not injured at all or that your injuries were less severe than you claimed. For example, if you claim pain and suffering damaged your quality of life, the insurance company may use social media posts that appear to show that you were active and enjoying life.
Therefore, seek medical treatment for your car accident injuries and document symptoms, treatment, and how your injuries affected your lifestyle and well-being. Also, it is wise to avoid posting on social media about your accident or downplaying the effects of your injuries. These statements may negatively impact your case.
Because pain and suffering are so subjective, it is difficult to calculate and difficult to prove. The victim will need to convince the judge and jury that the individual suffered pain before allowing compensation for that pain.
In most cases, this process begins with testimony from the injured person. However, infants can still recover compensation for pain and suffering caused by a negligent accident, even if they are too young to talk about their pain. Instead, they may demonstrate their discomfort by crying, facial expressions, or rigidly holding their bodies.
Evidence supporting a claim for pain and suffering might include:
- Medical treatment records, including records from therapists and other medical professionals.
- Police reports from the accident. These typically show important details about what occurred and who may be at fault.
- A log of all medical treatment, levels of physical pain, and mental or emotional symptoms.
- Photographs and videos. Take pictures of your injuries throughout the recovery period. Even if you feel embarrassed, videos of any scarring or the challenges involved in getting around can be valuable.
- Witness statements. These may be witnesses who saw the accident. However, they may also be witnesses to the changes in your life. The people who help you deal with everyday tasks, such as childcare, walking the dog, housework, transportation, and more, can paint a clear picture of what your injury has done to you.
- Expert witness testimony. Experts can testify about medical conditions, psychological trauma, or the ongoing effects of a traumatic brain injury.
An injury often leaves emotional and psychological wounds that do not heal over time. Sometimes an injured person feels that they should not “complain” or be stoic about their newly acquired struggles. However, pain and suffering damages are monetary compensation for the unwelcome changes you face because of the injury. Every state has a statute of limitation outlining the deadline within which you must file a lawsuit.
If an accident injured you or a loved one, consult an experienced personal injury lawyer as soon as possible to discuss your pain and suffering. Call a personal injury lawyer today for a free consultation and learn more about your right to compensation for your pain and suffering.