A person seriously injured in a car accident due to another driver’s careless or reckless actions can use the personal injury claims process to seek compensation for the monetary costs of their injury, such as medical expenses, wage loss, and repair or replacement of their vehicle.
However, courts and governing bodies across the nation have long understood that monetary expenses aren’t the only type of cost that an injured person suffers. Being injured in a car accident often produces significant impacts on the sufferer’s quality of life, as well.
Claimants can also seek non-economic damages commonly referred to as pain and suffering damages through their claim with the help of a car accident lawyer. Here is a look at what pain and suffering damages are and how much a person can seek for these damages.
What Does the Legal Term Pain and Suffering Mean?
Serious injuries can impact every part of a person’s life. It deprives them of the ability to earn an income, perform daily living tasks unassisted, enjoy their relationships with their family and friends, and go throughout their day without the pain associated with the injury, the memory of the accident, or the inconvenience of frequent treatments.
As noted by Cornell Law School’s Legal Information Institute, pain and suffering refer to any type of physical discomfort and emotional distress compensable as non-economic damages. The term also refers to any quality-of-life impacts incurred as a result of the accident.
This term includes anguish, inconvenience, emotional trauma, loss of the enjoyment of life—which is the loss of the ability to participate in activities and hobbies the injured party once enjoyed and loss of consortium, which refers to the loss of the ability to enjoy physical intimacy with one’s spouse.
The Center for Justice & Democracy adds that most monetary (economic) damages sought by car accident claimants do not go to the claimant but rather to their creditors. For example, when a person collects compensation for medical expenses, that money goes to healthcare providers and insurers who have provided treatment. Compensation for a damaged vehicle goes to repairing or replacing that vehicle.
Wage loss damages replace the loss of income and provide more for higher-earning claimants than those with minimum wage jobs, as they’re calculated based on the claimants’ earnings in the period just before the accident.
Non-economic damages are intended for the claimant as payment for all the significant impacts that have affected their quality of life due to the injury.
How Do You Calculate Pain and Suffering?
The money available for pain and suffering often confuses claimants, as they don’t know how to calculate impacts that do not produce a bill for services or come with a price tag. An experienced personal injury lawyer calculates a claim by carefully considering certain factors involved in the claim and the injury incurred.
Once they considered the factors listed below, the attorney will arrive at a value for the claim that includes the total amount of expenses incurred as a result of the accident (known as economic damages) and the total non-economic (pain and suffering) damages.
The Factors That Are Considered When Valuing a Claim
Here are some factors that an attorney uses to determine how high to calculate the pain and suffering claimants experienced due to their injury.
The limits of the at-fault party’s insurance policy: this seems like a trifling matter to consider when calculating the amount of pain and suffering one has endured due to serious injuries. However, all liability insurance policies have limits, which reflect the maximum amount of compensation available to claimants for the harm caused to them by the insured.
The severity of the injury. More severe injuries generally require a higher level of medical treatment, including hospitalization and the provision of frequent or painful treatments. Likewise, more severe injuries also commonly result in the claimant being unable to work for a more extended period while recovering, as well as a higher likelihood that they will need assistance with daily living tasks and be unable to participate in enjoyable activities.
The permanence of the injury. When calculating a claim’s value involving permanent injuries, an attorney cannot simply look at the expenses and impacts the claimant endured in the weeks or months following the accident. Instead, they must consider how the injury will likely impact the claimant in the future. Will they be able to work? Will they be able to live independently? Will they endure chronic pain or require frequent medical intervention to cope with the complications of the injury?
The clarity of liability. Many accidents do not clearly feature one liable party and one injured party. Instead, there can be liability and injuries to go around. The less clear fault is, the more considerations there are to make when valuing a claim.
How Does a Lawyer Prove Non-economic Damages?
How does your attorney prove that you’ve suffered non-economic impacts from your injury?
Through evidence such as:
- Medical records that show the diagnosis of a serious injury and the types of treatment provided;
- The frequency in which the claimant had to attend doctor’s appointments for the treatment of their injury, which can indicate an inconvenience;
- The testimony of medical experts as to the likely impacts of the type of injuries the claimant sustained;
- Psychiatric records showing treatment for mental trauma or emotional distress;
- Photographs of the injuries that can indicate disfigurement or extensive scarring that could cause the claimant embarrassment;
- Testimony from family and friends who can speak to how the injury changed the claimant’s personality or daily activities;
- Journals from the claimant express the difficulty of their life or reveal a significant amount of time consumed by rehabilitation or treatments.
The Importance of Valuing a Claim Properly
Most personal injury claims are resolved by settlement, which generally involves the claimant entering a legally-binding agreement in which they agree to accept an amount less than the claim’s established value. In exchange for this compensation, they waive their right to seek additional compensation through court.
The claim’s value is the starting point of the negotiation process for the claimant, while the initial offer made by the at-fault party’s insurance provider is their starting point. Initial settlement offers are commonly only a fraction of the claim’s value. The claimant’s attorney negotiates with the insurance provider to get them to increase their offer until it is as close to the full value as possible.
Pain and suffering damages typically account for 50 to 80 percent of a claim’s full value. If the claimant has not included non-economic damages in their claim’s value, they are at a disadvantage as they seek to settle an undervalued claim. The initial offer will be even lower. Even if their attorney were to negotiate to the point where the insurance provider offers full value on the claim, the claimant still risks not having the compensation they need after they’ve paid for the expenses of their injury.
The case is generally considered closed when a claimant agrees to a settlement and releases the at-fault party and their insurance provider from any further liability. There is no longer a possibility to ask for additional compensation if more than the amount they received in the settlement is needed.
Likewise, if the case goes to trial and requests a judge or jury to determine if the at-fault party’s insurance provider owes the claimant the amount of their undervalued claim, they also risk not being provided enough compensation.
Services an Attorney Provides to Ensure You Get the Compensation You Need
An attorney has a vital role in ensuring that your case is valued correctly by considering the impacts you’ve incurred due to the injury and the monetary expenses. This role also means protecting your claim from insurance companies tactics to reduce or even eliminate payouts on claims for those injured by their insured
Some of these tactics include:
- Convincing a claimant that no pain and suffering damages are available for their claim;
- Convincing a claimant to accept a ridiculously low settlement, often with a short deadline that does not allow the claimant the opportunity to consider the offer or discuss it with an attorney, or with the threat that if they don’t accept the offer, their claim will not be compensated;
- Convincing the claimant to authorize the release of their entire medical history so that the insurance claims adjuster can look for pre-existing conditions that will reduce the value of the claim.
As you can see, there is a lot of convincing that insurance claims adjusters do when dealing with claimants who don’t have an experienced personal injury lawyer to manage this communication. However, when the claimant has an experienced car accident lawyer on their side, the lawyer manages communication with the insurance provider, providing the claims adjuster with enough information to consider the claim, which does not require seeing the claimant’s entire medical history.
Negotiating a Settlement After Filing a Lawsuit
The claimant’s attorney will also rely on their communication skills to help the insurance claims adjuster understand the severity of the injury to negotiate the best settlement possible for the claim. If the claim is not compensated either through direct payment or a negotiated settlement, a car accident lawyer will protect the claimant’s right to seek compensation through the court process by filing a personal injury lawsuit within the state’s statute of limitations.
Filing a lawsuit is not the end of settlement discussions. In fact, this action often signals the beginning of serious negotiations, as the insurance provider typically wants to avoid the uncertain outcome and expenses involved in litigation.
While the claimant’s attorney continues to negotiate with the at-fault party’s insurance claims adjuster, they will also be preparing the case for trial, including gathering evidence, deposing witnesses, filing motions, and responding to motions filed by the defense, arranging for expert testimony, preparing evidence exhibits, and representing the case in pre-trial conferences.
While most personal injury cases are resolved before trial, having the ability to litigate the case in court is an important option and can be the only option for getting the case compensated if the insurer refuses to pay. It is vital to hire an attorney with a proven track record of litigating cases, as there is no way to know at the beginning of the process whether an insurance company will be willing to settle the claim. As your trial date approaches, your attorney will prepare you for the trial, letting you know what to expect as they present your case in court.
After the conclusion of the trial, the attorney continues to work for the claimant, receiving the compensation on their behalf and helping them to settle liens that have been placed on the award by creditors such as health care providers and group health insurers who provided coverage of the medical treatment of the injury and want to recoup their costs.
Your car accident attorney works on a contingent fee basis, meaning that you are only responsible for paying for the attorney’s services if they secure a successful outcome in your claim. Once you receive compensation, your attorney will only receive a percentage as payment for their services.
Mr. Finkelstein is the Managing Partner of Finkelstein & Partners, LLP. He has become a noted consumer activist through his representation of injured individuals against corporate wrongdoers and irresponsible parties.
An accomplished litigator, Mr. Finkelstein has represented Plaintiffs in wrongful death and catastrophic personal injury cases. He has successfully handled dozens of multi-million dollar cases.