How Do Lawyers Calculate Pain and Suffering?

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How Do Lawyers Calculate Pain and Suffering?

Victims of negligence who suffer bodily harm face emotional distress and financial difficulties on top of their physical pain. When they seek compensation for their injuries, damages they can recover include economic damages, such as medical expenses and lost wages.

Damages also include non-economic damages, such as reduced quality of life and loss of consortium. Pain and suffering is the most common damage victims of negligence recover in personal injury lawsuits.

Calculating non-economic losses like pain and suffering is far more complicated than calculating economic losses. It’s simple to add medical bills, lost wages, and other expenses to seek compensation. Lawyers must rely on various evidence and tools to place a fair value on a client’s pain and suffering.

Below we take a closer look at what qualifies as pain and suffering, factors that influence the amount of pain and suffering, including in an accident injury claim, and types of evidence personal injury lawyers review to determine the appropriate number for a claim.

What Qualifies as Pain and Suffering?

If you were injured by someone else, you understand pain and suffering. However, the abstract concept of pain and suffering has a more specific definition and purpose in the context of a personal injury claim. On a rudimentary level, pain and suffering refer to the physical pain and emotional distress someone faces due to injuries caused by another party's negligence. These injuries could come from a traffic accident, an ATV accident, an accident on someone else's property, and various other scenarios.

Depending on the situation, pain and suffering might include various physical and emotional aspects of an injury.

Examples include:

  • Specific bodily harm, such as including brain injuries, broken bones, and amputations
  • Chronic physical pain, aches, and general discomfort
  • Temporary or permanent activity restrictions
  • Reduced quality of life
  • Anxiety, depression, PTSD, and other mental health challenges
  • Humiliation or embarrassment from visible scars resulting from burns, amputations, and other injuries

Lawyers examine the ways injuries have impacted their client’s life before they can calculate pain and suffering for a claim.

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Elements Affect the Amount of Compensation for Pain and Suffering

Personal injury claims share various elements that impact the amount of compensation someone could receive for their pain and suffering. Examples of elements lawyers examine to calculate pain and suffering include:

How Severe Are the Injuries?

In most cases, the more severe injuries someone suffers, the more money they could receive for pain and suffering if they win their claim. For example, someone who sprains their ankle and breaks their arm in a car accident experience pain, but they typically heal quickly. They might have to wear a cast or brace but can expect to return to normal activity within a few months or sooner.

Pain and Suffering

However, someone who sustains a traumatic brain injury or spinal cord injury and suffers permanent damage can expect more compensation for pain and suffering. More severe injuries typically require a hospital stay and cause other issues that can increase the value of pain and suffering for victims of negligence.

What Is the Nature of the Injury or Injuries?

The nature of an injury also factors into a lawyer’s calculation of pain and suffering in a personal injury claim. Some injuries are immensely traumatic that sometimes result in humiliation, anger, and frustration. Victims of negligence who suffer from permanent scars or disfigurement from their injuries often have grounds to seek more compensation for pain and suffering.

The location of your injury can affect the calculation of pain and suffering. For example, someone with a permanent scar on their face can typically receive more compensation than someone who has a less visible scar on their hip or abdomen.

What Is the Likelihood of a Full Recovery?

The severity and nature of an injury are strongly related to someone’s chances for a full recovery. Severe and complex injuries require various amounts of time for healing and recovery. Unfortunately, a full recovery is not always possible. Severe injuries and/or multiple injuries sometimes make it challenging for doctors to predict how long recovery should take. This is especially true for brain injuries and injuries along the spinal column.

Victims of negligence with little or no chance of making a complete recovery typically receive more compensation for pain and suffering. Your lawyer will discuss your prognosis with your doctor to help determine how much pain and suffering you should seek in your claim.

How Much Economic Loss Has Someone Incurred Due to Injuries?

Economic loss makes up a portion of all personal injury claims. These losses typically include ambulance service, emergency room treatment, hospitalization, surgery, medication, lost wages, and other expenses related to an injury. Lawyers calculate economic loss by adding up bills and receipts.

Large amounts of economic loss can translate to additional compensation for pain and suffering. The cost of getting injured can place a massive financial burden on a household, sometimes forcing victims of negligence to face bankruptcy, foreclosure, vehicle repossession, and more. Economic struggles add emotional stress to victims that increase pain and suffering.

What Insurance Policy Limits Exist?

The vast majority of personal injury lawsuits emerge from insurance claims. It might be that the person, business, or other entity responsible for your injuries has no insurance, but this is the exception, not the rule. Depending on how you were injured, recovering damages might include filing a claim with auto, homeowners, commercial, or another type of insurance carrier.

The coverage limit for the policy could factor into your lawyer's calculation of pain and suffering, especially if the limit is low. Lawyers will calculate economic losses first because they are easier to figure out and prove. If the amount of pain and suffering puts the total value of a claim over the insurance policy limit, a legal action might not recover the claim's full value.

Evidence to Help Calculate Pain and Suffering

Lawyers review various types of evidence to help them calculate pain and suffering. Even more importantly, evidence supports a lawyer’s calculation. Experience and previous cases that are similar to yours often serve as a rough ballpark estimate, but rough guesses do not hold up with an insurance company or in court. Reviewing evidence helps solidify numbers in an initial demand for compensation by helping lawyers answer the questions discussed above.

Examples include:

Medical Records

Your current and past medical records provide a wealth of information to your lawyer about pain and suffering. They show past injuries, treatments, and other forms of rehabilitation you have undertaken during your recovery. The other side will scour your records for preexisting injuries to argue your pain and suffering is not their fault. However, your lawyer might find that your current injuries aggravated a preexisting injury.

Additionally, information about prescriptions can impact compensation for pain and suffering.

Pain medication and treatments support claims of chronic discomfort and pain. Antidepressants, mood stabilizers, and other medications used to treat anxiety and depression can support claims about ongoing emotional distress related to your injuries.

Finally, medical documentation also reveals your long-term prognosis, which significantly affects the pain and suffering compensation someone might receive if they prevail in their personal injury claim.

Medical Bills

As mentioned above, your total amount of economic loss impacts the calculation of pain and suffering. Medical bills are evidence of that economic loss and potential financial burden for a victim of negligence and their family. Medical bills include any bill from an ambulance service, hospital, clinic, physician, surgeon, pharmacy, radiologist, lab, and any other medically necessary services related to your injuries.

Provide all these documents to your lawyer when you initially meet to discuss your case. Non-payment of medical bills and other adverse economic situations can also help show the financial hardship aspect of pain and suffering.

Photographic Evidence

Your medical records provide descriptions of your injuries and maybe some X-rays or other scans. However, they do not always include plain photographs of injuries. Descriptions help convey injuries to your lawyer and others who want to calculate your pain and suffering, but descriptions are more effective with photographic evidence of injuries.

Your lawyer can see the impact of your injuries and better grasp your pain and suffering to assign it a monetary value. Additionally, photos of your injuries make it more difficult for the insurance company to deny your claim or try to devalue your injury claim.

Police Report

Many scenarios that lead to personal injury claims, especially traffic accidents, involve official police reports. A police report is only one person’s narrative of how an event occurred, and most of the time, the law enforcement officer was not present when the event occurred. They rely on witnesses and other evidence to complete their reports after the investigation.

Consistency between your medical records and law enforcement’s account of how an accident occurred supports your personal injury claim, increasing the chance you will receive additional compensation for pain and suffering.

Victim Impact Statements

Lawyers must justify their pain and suffering calculations for insurance companies and liable parties to take them seriously. Victim impact statements provide a tool for lawyers to learn about the impact of your injuries from unbiased sources. Your lawyer might interview people who knew you before and after your injuries and can speak to the changes and challenges you’ve faced because of them.

Sometimes lawyers speak to friends and family, but they often seek interviews with work colleagues or other acquaintances who are less likely to give biased information. Victim impact statements that speak to major challenges often increase a lawyer’s calculation of pain and suffering.

Expert Opinions

Most lawyers and law firms have extensive professional networks that include various specialists to help them with cases. Although various expert witnesses and testimonies might impact the amount of pain and suffering you could receive, medical experts typically have the most impact in personal injury cases.

Medical professionals with expertise in the area related to your injuries can support your doctor’s prognosis and support the amount of pain and suffering your lawyer calculated. For example, if you suffered a brain injury, your lawyer might consult with a neurosurgeon for an opinion on your prognosis.

Medical experts can also provide opinions that support the emotional aspects of pain and suffering. Depending on the opinion and the situation, expert opinions can increase the amount someone receives for pain and suffering.

Experience Is Key for Lawyers Calculating Pain and Suffering

Russell Nicolet - Managing Attorney at Nicolet Law
Russell Nicolet, Personal Injury Attorney

Calculating pain and suffering for a personal injury claim is a highly subjective task, making it a main point of contention in most settlement negotiations. Disagreements about non-economic costs sometimes cause negotiations to fail and force victims of negligence to bring their cases to court.

Experienced lawyers must regularly calculate pain and suffering damages for victims of negligence. They know the ins and outs of the law and how to best apply it to fight for maximum compensation for their clients.

Even if a lawyer arrives at a specific number, it doesn’t mean their client will collect that amount. Insurance companies fight to avoid payouts, especially large ones. It’s difficult for them to fight economic loss calculations supported by receipts and bills, so they often turn to pain and suffering and other non-economic losses to devalue a claim.

Settling a personal injury claim and avoiding costly litigation often involves negotiations that force victims to accept less than their lawyer’s initial figures while still receiving fair compensation for their pain and suffering. However, in some cases the insurance company will just be fair or reasonable about the true pain and suffering, so a jury may be needed to force the insurance company to pay.

If you have suffered injuries because of someone else, you most certainly have faced some level of pain and suffering. It’s in your best interest to contact a skilled personal injury lawyer who can evaluate your case and determine your eligibility for pain and suffering and other types of compensation.