If you sustained injuries due to someone else’s negligence, you could recover several types of damages. One of them is pain and suffering. Proving pain and suffering is more complicated than demonstrating economic damages. To do it, you need a holistic approach.
From collecting evidence to obtaining expert witnesses’ testimonies, proving this type of damage may take time and require professional legal assistance. Meanwhile, the compensation is often higher than what you can get for economic damages.
Let’s take a closer look at proving pain and suffering in a personal injury case.
What is pain and suffering?
In a personal injury case, pain and suffering involves physical and emotional damages that stem from the injuries. The two types of pain and suffering are:
1. Physical Pain and Suffering
This is the pain you experience from the accident, during treatment, and after the acute phase of the injury ends. Even seemingly minor injuries could lead to chronic pain that tremendously reduces your quality of life.
The most common injuries that can lead to pain and suffering include:
- Traumatic brain injury (TBI)
- Spinal cord injury
- Paralysis
- Internal organ damage
- Broken bones
- Nerve damage
If an injury you sustain due to someone else’s negligence causes a permanent disability, you can be entitled to life-long compensation.
2. Emotional Pain and Suffering
This is the mental and emotional pain you experience due to the injuries sustained due to someone else’s negligent actions.
Emotional anguish and psychological consequences can last for many years and require continuous treatment. Even if your physical injuries are not severe, you may sustain serious emotional injuries.
Some examples of emotional pain and suffering include:
- PTSD (post-traumatic stress syndrome)
- Mental and emotional anguish
- Fear
- Grief
- Loss of enjoyment of life
- Psychological trauma
- Anger
- Frustration
- Insomnia
Emotional pain and suffering can last for a long time. For example, something as common as PTSD may not go away for many years even if you treat it.
How is pain and suffering calculated?
Calculating economic damages is often easy since tangible evidence such as bills and reports back them. With non-economic damages, the calculations are partially subjective. In most cases, courts use one of two methods
1. The Multiplier Method
This method is more common if the consequences of the injuries are likely to be long-lasting. It involves calculating all economic damages in the personal injury case and multiplying the final amount by a certain number.
Determining the multiplier can be complicated.
Courts and insurance companies can rely on:
- The extent of your injuries – If you suffer from catastrophic injuries (e.g., TBI, spinal cord injury, amputation) that are likely to require long-term treatment, the multiplier will increase. If your injuries are treatable within a relatively short period (e.g., broken bones), the multiplier will be lower.
- Expert witness testimony – If medical professionals clearly state that you have a recurring issue that is likely to cause problems for the rest of your life, the multiplier can increase.
While the multiplier method is easier to use, you would need to provide substantial evidence for it to be accepted.
In most cases, using this method is warranted by:
- Painful and traumatic injuries.
- The diagnosis and treatment from primary healthcare providers.
- Long-term (over six months) recovery.
- Permanent consequences (disability, scarring).
- Injuries that disrupt your daily life.
If your injuries are not severe and do not require long-term treatment, you may need to settle for the per diem calculation method.
2. Per Diem Calculation Method
Per diem or “per day” calculation method involves determining an amount that should compensate for one day of your pain and suffering. Then the amount is multiplied by the number of recovery days.
Your recovery begins on the date you sustain a personal injury and ends once you reach MMR (maximum medical recovery). An expert witness—a medical professional—determines the approximate duration of recovery.
If you recover before filing a personal injury claim, your doctor’s report can back the recovery end date.
In many cases, insurance companies and courts use the daily wage amount for the per diem figure. So, if you earn $200 per day, and your recovery lasts five months, the compensation amount could be 200x5x30=$30,000.
Calculating the pain and suffering amount for your claim does not always seem easy, especially if you are not sure about the strength of your case. You may want to ask a personal injury attorney to help you come up with a fair number.
Each Case Is Unique
Each personal injury case is unique, and so are the pain and suffering damages. You need to calculate an approximate pain and suffering figure to file a claim. However, it can change during negotiations or in court.
Keep in mind that pain and suffering is partially subjective. You would have to make a strong case to get higher compensation.
Besides coming up with a reasonable number, you need to present sufficient evidence and testimonies to back it up. Even if your injuries are truly severe and you deserve considerable compensation, a lack of evidence and professional representation could decrease the final settlement figure.
Factors That Affect Pain and Suffering Compensation
Several factors can affect the size of your pain and suffering compensation.
They include:
- The extent of your injuries
- Quality of evidence
- Professionalism of witnesses
- The likability of the plaintiff and witnesses
- The credibility of the plaintiff and witnesses
- Consistency of testimonies
- A reasonable starting figure
- Supportive evidence from medical professionals
- Existence of a criminal record (for plaintiff)
If your case goes to trial, providing sufficient evidence will not be enough. As the subjective opinions of the judge and jury become a factor, you have to present a strong case and hope for the best outcome.
Most personal injury cases settle out of court. Even if you are not happy with the offer made by an insurance company and decide to proceed to trial, you can still get a reasonable settlement offer at any time.
Proving Pain and Suffering
When it comes to proving pain and suffering, all evidence matters. The more evidence you have to support the figure you demanded, the more likely you are to get it. Here is what you can present to the court or the insurance company to prove your case.
#1. Evidence
Even though pain and suffering is not tangible, tangible evidence can back up your claim.
This evidence includes:
- Medical bills
- Doctors’ reports
- Prescriptions for medication
- Police records
- Photos and video of the accident
- Treatment reports from mental health professionals
- Mental health evaluations
- Reports of lost wages for missing work
This evidence does not just show how much you are suffering, it also determines the economic damages. If you choose to use the multiplier method, you need to demonstrate the extent of tangible damages that shows how injuries sustained in an accident affect your quality of life.
This can include:
- Evidence that you used to play a particular sport, but cannot do it anymore.
- Journals that demonstrate how your life has changed after the accident.
- Photos and videos of your life before and after the accident.
Anything that can convince the insurance company or the court that you are entitled to damages can be useful.
#2. Expert Opinions
Expert opinions play a significant role in proving pain and suffering damages. You may need to hire expert witnesses to testify to the extent of your economic and non-economic damages.
For example, a mental health professional can testify to the possible duration of your PTSD treatment. Meanwhile, a physician can explain if your pain is chronic.
Expert witnesses will testify to how your injuries affect the quality of your life today and how they will affect it in the future.
#3. Hiring an Expert Witness
Expert witnesses do not usually testify for free. You would need to pay these specialists for their work.
Before working with an expert witness, you need to vet them for conflict of interest, qualifications, and experience. Working with the wrong person could hurt your case.
#4. Witness Testimonies
To prove pain and suffering, you may want to get testimonies from:
- Eyewitnesses of the accident that led to your injuries. This can help evaluate the stress an accident may have caused you.
- Friends and family that know your quality of life before and after the accident.
These witnesses do not always have to show up and give their testimony in person. In many cases, they can provide written statements.
While it may seem that having numerous witnesses is a good thing, some testimony may not be necessary. You might want to speak to an attorney to determine which witnesses can benefit your case.
#5. Economic Damages
Since economic damages play a significant role in determining the amount of compensation for pain and suffering, you have to provide evidence to back them up.
Proving current economic damages may be fairly simple. All you need to do is collect bills and reports. However, you would also need to hire expert witnesses to prove future damages.
The more economic damages you can demonstrate, the bigger your pain and suffering payout is likely to be.
Filing a Claim for Pain and Suffering
Once you have an approximate pain and suffering figure, you can file a personal injury claim. Many people wait to start legal action because they are dealing with treatments. Waiting too long could hurt your chances of obtaining compensation for pain and suffering because:
- Evidence can be lost.
- Witness memories can fade.
- The time to file a claim can run out.
In California, the statute of limitations for personal injury cases is two years from the date of the injury. However, there are some exceptions. If the two years are up, consult a local attorney to determine if you are eligible for tolling the statute.
While you should not wait too long, rushing to file a claim right after the accident is not a good idea either. Your mental and emotional side effects may not emerge for days or weeks after the accident. That is why you must speak to both physical and mental health experts before filing a claim.
If injuries do not manifest themselves right after the accident, you still have time. According to California law, you have one year from the day you discover the injuries to file a claim.
Can an attorney help you prove pain and suffering?
Proving pain and suffering may not always be easy, especially if your injuries are not catastrophic. Besides collecting evidence, you may need to present your case to the jury, whose opinion is subjective. To make a strong case, you need legal expertise and experience.
A personal injury attorney can help you prove pain and suffering by:
- Conducting an investigation
- Collecting evidence
- Explaining what evidence matters
- Vetting and hiring expert witnesses
- Choosing the right eyewitness
- Negotiating with the insurance company or the defendant
- Presenting your case to a judge and jury
Since the at-fault party will do everything possible to defend itself and minimize the payment, you need a strong legal advisor in your corner to prove your eligibility for fair compensation.
Speak to an Experienced Personal Injury Attorney
You cannot prove pain and suffering on your own-it is far too complicated. If you sustained injuries due to someone else’s negligence and want to seek compensation, you need legal assistance.
An experienced legal team can help you pursue the compensation you deserve.
Contact a personal injury attorney for a free case evaluation at any convenient time.