Pain and Suffering in a Personal Injury Case
What is pain and suffering from a legal perspective, and more importantly, how is it calculated for purposes of an injury-related insurance claim or lawsuit?
There are two types of pain and suffering:
Physical pain and suffering
Mental pain and suffering
Physical Pain and Suffering is the pain from the plaintiff’s actual physical injuries. It includes not just the pain and discomfort that the claimant has endured to date, but also the detrimental effects that he or she is likely to suffer in the future as a result of the defendant’s negligence.
Mental Pain and Suffering results from the claimant's being physically injured, but it is more a by-product of those bodily injuries. Mental pain and suffering include things like mental anguish, emotional distress, loss of enjoyment of life, fear, anger, humiliation, anxiety, and shock.
Mental pain and suffering is basically any kind of negative emotion that an accident victim suffers as a result of having to endure the physical pain and trauma of the accident.
Very significant mental pain and suffering can include anger, depression, loss of appetite, lack of energy, sexual dysfunction, mood swings, and/or sleep disturbances. Even more severe mental pain and suffering can even constitute post-traumatic stress disorder (PTSD).
Mental pain and suffering, like physical pain and suffering, includes not just the effects that the victim has endured to date, but also the mental pain and suffering that he/she will more than likely suffer into the future.
There are many other factors that affect the value of the pain and suffering component of a personal injury case. These include:
whether the plaintiff is or will be a good or bad witness
whether the plaintiff is likeable
whether the plaintiff is credible
whether the plaintiff’s testimony regarding his or her injuries is consistent
whether the plaintiff is exaggerating his or her claims of pain and suffering
whether the plaintiff’s physicians support the plaintiff’s claims of pain and suffering
whether the jury thinks that the plaintiff lied about anything, even something relatively minor (as a general rule, if a plaintiff lies, the plaintiff loses)
whether the plaintiff’s diagnosis, injuries and claims make common sense to the jury
whether the plaintiff has a criminal record
How to Calculate Pain And Suffering
Judges do not give juries much in the way of guidelines for determining the value of pain and suffering in a personal injury lawsuit. There are no charts for juries to look at in order to figure out how much to award.
In most states, judges simply instruct juries to use their good sense, background, and experience in determining what would be a fair and reasonable figure to compensate for the plaintiff’s pain and suffering.
You may have heard about a "multiplier" being used in personal injury cases, where pain and suffering is calculated as being worth some multiple of the injured person’s total medical bills and lost earnings (which are called the claimant's “special damages”).
Often, the "multiplier" is considered to be somewhere between 1.5 and 4, meaning that the pain and suffering is 1.5 to 4 times the value of the claimant's special damages.
However, the "multiplier" concept is only a very rough estimate and does not apply in all personal injury cases. It is most useful in minor injury cases, where the total damages are less than $50,000. But even in small cases, you should be very careful about applying the "multiplier.