Almost everyone has heard the term ‘pain and suffering’ at some point. In a personal injury case, pain and suffering is an element of non-economic damages

In fact, it is not at all unusual for a victim’s compensation for pain and suffering to amount to more than all other elements of their compensation combined.

Examples of Medical Conditions That Generate Particularly High Pain and Suffering Claims

The following types of injuries add up to a high percentage of all pain and suffering claims:

  • Amputations;
  • Blindness;
  • Certain kinds of cancer (due to toxic exposure, for example);
  • Complex regional pain syndrome (CRPS);
  • Debilitating mental health conditions such as PTSD;
  • Disfiguring facial injuries (resulting in psychological torment);
  • Severe burns;
  • Severe infectious diseases such as sepsis;
  • Severe internal injuries;
  • Severe neurological disorders;
  • Severe orthopedic injuries;
  • Spinal cord injuries;
  • Toxic exposure to chemicals; and
  • Traumatic brain injuries (TBI).

Of course, the human body is complex, and there are thousands of ways to injure it. The foregoing list simply presents some of the most common and painful injuries.

Factors That Influence the Amount of a Pain and Suffering Claim

There is no certain mathematical formula that you must use to calculate any claim for pain and suffering. Different claimants apply different methods and emphasize different elements of compensation. Below is a listing and explanation of some of the most common factors.

  • The overall severity of the injury.
  • The duration of your suffering: A less intense pain might command higher compensation than pain of greater intensity but shorter duration.
  • Your age. If you are young and face a lifetime of chronic pain, for example, your recovery should be higher.
  • The impact of your injury on your daily life and activities. You might characterize this as a form of suffering, even if it’s not physically painful.
  • The type of medical treatment you need. Sometimes, the treatment is more painful than the condition you’re treating.
  • Your estimated need for future medical treatment. You might need an expert to estimate this amount.
  • The emotional and psychological trauma you have endured.
  • Any pre-existing conditions, which might lessen the amount of suffering attributable to your new injury.

Your lawyer might be able to think of many more forms of pain and suffering for you to claim. 

Evidence of Pain and Suffering

Since ‘pain and suffering’ is inherently intangible, it can be difficult to think of what sort of evidence you might need to prove it. Following is a list of some of the evidence that claimants have used in previous cases:

  • Affidavits from family and friends;
  • Before and after photographs;
  • A daily ‘pain journal’ that you might keep;
  • Detailed medical bills;
  • Your doctor’s notes and medical records;
  • Your employment records showing lost work time;
  • Expert testimony on the painfulness of your condition and your future medical needs;
  • Expert testimony on the nature and duration of your injury;
  • Your own testimony;
  • Medical imaging (e.g., X-rays, MRIs);
  • Pain management treatment records;
  • Physical therapy records;
  • Prescription records for pain medication;
  • Psychological evaluations;
  • Records of alternative therapies such as acupuncture (which the insurance company might question as a medical expense);
  • Statements from mental health experts (about the psychological effects of chronic pain, for example);
  • Testimony from family members;
  • Testimony from occupational therapists;
  • Video diaries;
  • Witness testimony about changes in your behavior; and
  • Written statements from medical professionals (sometimes admissible in court).

A complete list of possible evidence might include thousands of items.

Calculation Methods

Following are descriptions of some of the most persistently popular methods of calculating pain and suffering damages in personal injury claims.

The Multiplier Method

Under the multiplier method, you start with your economic damages or some part of them (medical expenses plus lost earnings, for example). If you call that amount x, then your pain and suffering amounts to somewhere between 1.5x and 5x. 

The actual multiplier is something you would negotiate based on the seriousness of your pain and suffering. 

The Per Diem Method

“Per diem” is just a fancy Latin term meaning “per day.” How much is a day of your suffering worth? That depends, of course, on whether you’re suffering from a broken finger or a broken back. 

To calculate pain and suffering, come up with a daily value and multiply it by the number of days that elapsed between the date of your accident and the date that your doctor said you reached maximum medical improvement (MMI).

Insurance Company Software

Insurance companies often use popular software to help them calculate the value of a pain and suffering claim. Some of the most common include:

  • Colossus; 
  • Claims Outcome Advisor (COA),
  • XActimate:
  • Claims XPerience; and
  • Total Loss Valuation System.

These programs consider various factors, including details of your injury, treatment, and recovery. Ultimately, however, they are tools of the insurance company. Since their purpose is to justify unrealistically low settlement offers, you shouldn’t take them as ‘scientific.’ No software is more objective than its own algorithm allows it to be.

Comparative Analysis

Under the comparative analysis approach, you compare your claim to similar claims to find out how much similar claimants received for pain and suffering. Your lawyer, for example, might compare your claim to successful claimants that they have represented in the past. 

They probably won’t compare your claim to the outcomes of claims for clients they have not represented, however, since this information tends to be private and hard to come by.

Pain and Suffering vs. Total Damages

The amount of money you receive for pain and suffering can vary significantly relative to the overall amount of damages you receive. Your total settlement might work like this, for example:

Total settlement = (pain and suffering) + (other non-economic damages such as disfigurement) + (economic damages such as medical expenses and lost earnings). In unusual cases, you might qualify for punitive damages on top of all this.

Remember, compensation works very differently for a wrongful death claim than it does for a personal injury claim.

Settlement Negotiations

The above-described calculator methods are not exhaustive. Most pain and suffering claims resolve at the settlement table and do not always reflect a logical calculation process. One party might give in, for example, because they do not need the bad publicity of an outstanding personal injury claim against their company. 

Where does that fit into a mathematical formula for calculating the amount of a claim? It doesn’t, but that’s often the reality of settlement.

Hire a Boulder Personal Injury Lawyer To Maximize the Value of Your Claim

If your personal injury claim includes a large amount for pain and suffering, things could go either way. If you receive $1,000 for pain and suffering, did you ‘win’? What about $20,000? 

A lot depends on the persuasiveness of your Boulder personal injury lawyer. It’s not just whether you win or lose; it’s how much you win. Call Tenge Law Firm, LLC at (303) 665-2929 or contact us online to learn how we can help you.