For many of my clients, one of the most misunderstood parts of their personal injury claim involves the calculation of the pain and suffering portion of their case. So, before we delve too deeply into how to establish and strengthen a pain and suffering claim we first need to establish exactly what pain and suffering are under the law.
Pain and suffering are the emotional distress or mental anguish and that you have had to or will have to endure due to being injured by the negligence of someone else. Generally speaking, pain and suffering can include such factors as:
- Actual pain and discomfort
- Depression
- Anxiety
- Insomnia
- Any other emotional disorder
- Physical limitations that impact your quality of life
- Loss of consortium (Sex)
- Psychological traumas
- Much more
Calculating Your Demand
One of the first things you need to keep in mind when calculating your demand for pain and suffering, as part of a personal injury claim, is to be reasonable and realistic. The most common way of calculating your settlement demands for pain and suffering is what is commonly called the “multiple method”. The way the “multiple method” works is to take your special damages, that is your actual, provable losses, such as medical bills, loss of income, property damage, etc. and multiply it, depending on how severe an impact your injury has or will have on your life.
As an example, soft tissue injuries such as strains and whiplash might only be calculated by a multiple of 1 ½ or 2 times your actual damages. More severe injuries like broken bones or a herniated disk might involve a multiplier of 3 to 5 times your specials and injuries such as amputations, brain injuries or severe scarring could see a multiplier well above 5 times your medical expenses being utilized.
Establishing and Proving Your Pain and Suffering Claim
You have to remember that when it comes to negotiating a settlement with an insurance company or having to face them in court what matters more than anything else is documentation. The last thing you can expect is for the insurance adjuster or the company’s legal representatives to simply agree with you and say here is your money, you deserve it.
What you can expect is for them to do everything in their power to minimize the monetary outlay that their company is required to make. They’re going to challenge you and your attorney to prove that one, the issues that you claim actually do exist and two, that they were caused by the accident where you sustained your injury or the injury itself.
You can do yourself a great service by documenting as much as possible the claims that you make in your demand letter or case filing. As examples, if you are claiming insomnia you can keep a sleep diary to document your deteriorating sleep cycles and ask your treating Physician to prescribe you sleep aids. If you are claiming depression, seek help from a qualified psychiatrist or psychologist. If you are claiming that your injury has impacted your relationship with your children, have your kids write letters telling how things have changed between you and them since your accident and keep a list of missed school and personal events that you would have normally attended, before the accident, but have been forced to miss.
Pain and suffering claims always seem to be the most contentious part of a personal injury case. Since both pain and suffering are highly subjective in nature and unlike most other damages can be very difficult to quantify this is an area that you can expect a lot of resistance from the insurance companies in. The more you can do to document what you’ve been going through and how it has affected your life the better chance you have of receiving the settlement you deserve.
Don’t Exaggerate
At this point, I would like to add a word of caution, one of the worst things you can do, for your case overall, is to make false claims or try to exaggerate what you have been experiencing in the hope of receiving a larger settlement. If you leave any opening for the insurance company’s attorneys to attack your credibility and prove that you’re not being completely honest you place your entire case in jeopardy.
As I’ve often said in these posts, insurance companies are not in the business of giving away money. You should never accept a company’s first settlement offer or enter into negotiations with them without first consulting a personal injury attorney qualified for your case.