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By Jim Adler June 25, 2015

pain and suffering in injury cases

Some serious accidents may require physical therapy to regain daily activities such as walking.– Photo by kali9 (iStock by Getty Images)

Car accident lawyers often use the phrase “pain and suffering” to describe benefits clients can receive for injury losses. But what is pain and suffering, and how can it be measured for payments? That is, how much is it worth?

First, it’s important to know the meaning of “pain and suffering” as a legal term, which it is. A victim’s pain and suffering refers to the physical stress (pain) and the emotional stress (suffering) caused by an injury.

Pain is easy to understand and exists in various forms and to varying degrees . A victim may suffer mild aches and pains from bumps or bruises, or severe and chronic pain from a debilitating injury such as broken bones, cuts, burns, whiplash or damage to internal organs.

Emotional or mental injuries may include:

  • Grief
  • Fear
  • Fright
  • Terror
  • Worry
  • Nervousness
  • Apprehension
  • Shock
  • Insomnia
  • Indignity
  • Humiliation
  • Mortification
  • Embarrassment
  • Anxiety
  • Irritability
  • Emotional trauma
  • Emotional pain of losing the enjoyment of life

In addition, pain and suffering can result from surgery or other medical treatments necessary as part of a victim’s treatment or rehabilitation from a car accident.

While economic losses such as medical bills, lost wages, rehabilitation fees, therapy fees, property damages or other out-of-pocket costs are fairly straightforward to calculate, damages for pain and suffering are much more difficult to assess since they don’t involve objective criteria.

But victims of an auto accident can receive payments for economic and non-economic losses, referred to collectively as “compensatory damages.” That means both are designed to compensate victims for their losses as a result of the accident.

Within the category of compensatory damages, “pain and suffering” is considered a non-economic loss, also known as “general damages.” By contrast, medical expenses, property damage and lost salary are economic losses, also known as “special damages.”

How Is ‘Pain and Suffering’ Calculated?

While it’s easy to see how medical bills and lost wages can add up to form a vehicle injury case settlement, how is “pain and suffering” calculated for payments?

In a lawsuit, that depends on the jury or, if there is no jury, the judge presiding over the case. There is no precise formula or standard for determining damages attributed to pain and suffering, so the judge or jury are given wide discretion to establish dollar amounts for such damages using common sense and good judgment.

First, the judge or jury will consider the nature and extent of a victim’s injuries and the pain that resulted, as well as the duration of the suffering and the victim’s age and pre-existing health. Also pertinent is a victim’s need for psychological or psychiatric treatment, or any mental health therapy or rehabilitation.

pain and suffering in serious accidents

Some accidents may require the injury victim(s) to take prescription pain relievers for long periods of time.Photo by greenapple78 (iStock by Getty Images)

Additionally, if drugs are prescribed to relieve a victim’s pain, that demonstrates a substantial level of pain, which merits payments in a lawsuit. In any case, damages awarded should be proportionate to the injury and its aftermath.

With that aftermath in mind, just as a judge or jury can award economic damages for future lost wages, they can award non-economic damages for future pain and suffering when it is reasonably likely to continue.

Keep in mind that in some jurisdictions, a plaintiff (or victim) is not allowed to recover damages for mental or emotional stress if a physical injury is not also involved. But in Texas, a victim does not need to experience physical injury to recover damages solely for emotional distress or mental anguish if the act causing it was deliberate or the result of extreme recklessness.

Texas is not a “no fault” insurance state but rather holds negligent persons accountable for the injuries they cause. In a “no fault” insurance state, victims could not sue for pain and suffering at all, or claim punitive damages.

In Texas, pain and suffering damages even can be elevated depending on the nature of the injury. For instance, having your face permanently scarred is certainly a case where substantial damages could be awarded for sustained and ongoing pain and suffering. Clearly, permanent disfigurement or deformity can cause suffering.

How Do Insurance Companies Calculate Pain and Suffering?

The majority of car accident injury cases are settled out of court via negotiations between an insurance adjuster or defendant’s attorney and a car wreck lawyer. Each side will present a desired settlement amount, and negotiations will determine what the final amount becomes.

How do insurance companies calculate pain and suffering? Some apply computer programs to calculate how much of a settlement could be offered. As bad as that sounds when human lives are involved, it can get worse. Many insurers then try to deny, delay or underpay their clients.

In fact, insurers often try to avoid paying pain and suffering costs entirely. They assert that plaintiffs only should be paid for their economic damages, not for mental or emotional damages with no fixed economic cost. Indeed, it’s in the insurance company’s best interest to discredit pain and suffering, not to calculate its worth in favor of a defendant.

How Can You Claim Pain and Suffering?

Independently of an insurance company’s coldly calculating computer programs or outright denial of pain and suffering’s worth, how can you claim payments for pain and suffering that are all too real for you?

First, it helps to document the extent and severity of your injury and its accompanying pain and suffering. For this, you can collect photos, medical records, personal journals and other evidence concerning not just your physical damage, but also your mental and emotional distress.

Seek help from friends and family who may have documentation to support your claim. Treatment by a mental health professional after an accident serves as concrete evidence that you suffered significant pain and suffering and will be noted on your medical records.

It is also important that you emphasize any pain or discomfort to your treating physician. If you did not do this and only claimed to have had pain or discomfort to an insurance adjuster, then your claim is more likely to be denied. In short, if you’re hurting, let your doctor know about it as this can elevate your injury claim.

Ultimately, victims should be paid what they deserve, whether it’s for economic damages such as medical bills or non-economic damages such as pain and suffering. A car accident lawyer from Jim Adler & Associates will work with you to achieve the best possible settlement for you and your loved ones.

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