What is Pain And Suffering Damages?
How do you calculate pain and suffering damages?
What type of damages does it include?
In this article, we will break down the notion of Pain And Suffering Damages so you know all there is to know about it!
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What Are Pain And Suffering Damages
Pain and suffering damages are a type of damage claimed by a civil plaintiff when it suffers “non-economic” damages due to another’s negligence or wrongful act.
A non-economic damage is a type of compensatory damage a person may claim when physically injured such as damages for “pain and suffering”, anxiety, mental anguish, or other damages that are non-tangible.
So, pain and suffering is a type of non-economic damage and non-economic damages are a type of compensatory damage.
In essence, “pain and suffering” can refer to various types of injuries suffered by a person and can include “physical pain and suffering” but also “mental pain and suffering”.
For example, following a terrifying accident, a person suffers from chronic fear or insomnia, that can result in mental pain and suffering or emotional suffering.
Types of Non-Economic Damages
There are different types of non-economic damages.
Non-economic damages are not tangible and cannot be proven by producing a statement of account, receipt, or invoice.
Here is a list of different types of non-economic damages:
- Emotional distress
- Loss of consortium
- Loss of enjoyment of life
- Loss of quality of life
- Mental anguish
- Physical pain
- Psychological trauma
- Terror or ordeal
Every person may suffer an accident or personal injury differently and so they may claim different types of non-economic damages.
This list gives you a good idea of what non-economic damages represent.
How To Calculate Damages For Pain And Suffering
Every jurisdiction may be different in how they calculate damages for pain and suffering.
For example, in California, there are no fixed standards for calculating non-economic damages.
Proving Pain and Suffering
In essence, the plaintiff has the burden of proof to demonstrate that he or she suffered harm and must try to put a dollar value on the harm suffered.
In some cases, the plaintiff may want to make reference and cite case laws where in similar cases, the victim was able to obtain a certain amount.
The plaintiff can also attempt to prove the dollar value associated with the “pain” and “suffering” by producing an expertise to show the extent of how the victim suffered following the accident or wrongdoing.
Alternatively, the plaintiff may resort to his or her own testimony to compellingly present to the judge or jury the magnitude of the suffering and pain following the defendant’s tortious conduct.
The more the evidence is objective in nature, the more compelling it will be.
Using videos, photographs, testimony from family and friends, medical records and documents to show how the accident or defendant’s conduct has negatively impacted the plaintiff’s life can be quite effective.
Necessity of Physical Injury
In most cases, when the laws of the jurisdiction allows for a plaintiff to seek damages for pain and suffering, the courts may award it when there was physical injury.
However, there are some instances where the victim may not have suffered physical injuries and could still claim damages for pain and suffering.
For example, in California, a negligent infliction of emotional distress case or intentional infliction of emotional distress, the plaintiff may not have any physical injuries but may claim non-economic damages.
Calculation By Insurance Companies
Insurance companies do not necessarily have a “formula” or a “rule” when calculating damages for pain and suffering.
There are generally two methods in calculating pain and suffering:
- Multiply the plaintiff’s actual damages by a number between 1 and 5
- Use a “per diem” calculation
In the first case, if the plaintiff is entitled to economic damages of $10,000, based on the severity of the damages, the economic damages may be multiplied by 2 or 3 giving $20,000 or $30,000 in non-economic damages.
With the second approach, we can establish a damage “per day” of $150 and then multiply that by the number of days the plaintiff was injured.
Insurance companies do not have an obligation to follow these calculation methods in calculating pain and suffering.
Pain And Suffering Calculation Factors
Calculating intangible damages like pain and suffering is not necessarily an easy process.
For that reason, a judge or jury (or even insurance companies) will look at various factors to determine what’s a reasonable damage amount or quantum to award the plaintiff.
Typically, the following factors can be assessed:
- Egregiousness of the defendant’s negligent behavior
- Severity of the plaintiff’s injuries
- Nature of physical and mental pain suffered by victims of similar accidents
- The negative impact on the victim’s life
- Impact on the victim’s employment
- Impact on the victim’s overall health
- How long it took for the victim to heal from the injuries
- The nature and extent of medical treatments received
- The nature and extent of medical treatments needed in the future
- The injury prognosis
There may be other damages claims that may be successfully filed by a victim of an injury.
It’s advised that you consult the best personal injury lawyer to get advice as to what you may claim and what to do (or not to do) to put all the chances on your side.
How To Prove Suffering And Pain
In most jurisdictions allowing non-economic damages, the plaintiff does not have to present expert evidence.
However, in certain cases, it may be worth it for the victim of an accident to consult with a health counselor or get some sort of counselling to see how to deal with the pains and sufferings caused by the defendant.
For example, the injured party may consult a health advisor on how to deal with insomnia, anxiety, depression, and post-traumatic stress symptoms.
The health advisor will then have a much better appreciation of the plaintiff’s actual pain and extent of suffering as it is occuring or in its height.
In addition to brining a health advisor to prove your damages, you can also make use of other “objective” evidence such as:
- Medical records
- Pictures of damages
- Video of the pain suffered
- Doctor’s notes
- Social media posts
- Text messages
- Testimony from others
Every case should be assessed on its own merits so it’s important that you consult with an experienced personal injury attorney.
To substantiate your damage for suffering and pain, here are other ideas:
- Make sure you keep records of all your visits to the doctor or therapy sessions
- Request a written opinion from your health professionals and the consequence your injuries in the immediate term and long-term
- Identify neutral experts who can help you further express your injuries in concrete terms
- Keep record of all the medication that are prescribed to you particularly those for physical and mental pain
- Keep a log of how your life has changed due to the pains you endure
- Find friends and family who can testify as to how your life has been negatively impacted
Cap On Pain And Suffering Damage
It’s important to keep in mind that not all jurisdictions award damages for pain and suffering.
Also, even if the plaintiff can claim damages for non-economic damages, the law may cap the total amount that may be claimed from the tortfeasor or defendant.
As a result, you should be mindful of the liability cap the law may impose on non-economic damages.
For example, in California, there’s a $250,000 cap on non-economic damages in medical malpractice and professional negligence cases.
This cap is rooted in the Medical Injury Compensation Reform Act (MICRA) enacted in 1975.
Although a health professional will not be subject to a cap when the damages caused were as a result of its reckless or intentional conduct, in most medical malpractice cases, the plaintiff will be subject to the cap.
“Pain And Suffering” Damages Takeaways
So, how do you get damages for Pain And Suffering?
What are the factors courts and insurance companies look at when determining pain and suffering damages.
Let’s look at a summary of our findings.
Compensatory Damages For Pain And Suffering
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