It may surprise you to know that the hardest damages to prove in a legal case are often those that equate to the highest compensation. In legal speak, damages (the money you seek in a legal case) are categorized in two ways. The first, economic damages, are the measurable losses such as medical bills, lost wages, and costs associated with repairing damaged property. These types are the ones you’ve got the physical receipts for. However, in this article, we will be focusing on the second category, non-economic damages. These are defined as subjective or non-measurable losses. This is the injury itself, the trauma of recovery, and the emotional distress that follows. Follow along as we take a look at these types of damages, how the courts quantify them, and how you can ensure you are seeking the right settlement for your pain and suffering.
Common Types of Pain and Suffering Damages
There are many types of pain & suffering that can be explored in litigation cases. Recovery from an injury is so much more than just the injury itself. There is also the disruption to your relationships, the changes in your lifestyle, and the pain, physical and mental. Below, we will explore the various types of pain and suffering and how the court defines them.
Physical pain is categorized as discomfort (aches, pricks, tingles, or stings) to the body following an injury or accident. Physical pain ranges drastically depending on the accident, ranging from mild headaches to permanent severe pain. In car accident cases, it is common to see back or neck pain associated with whiplash. While the pain may be intense at first, it is commonly resolved with treatment. On the more severe end of the spectrum, physical pain could also be the tingling and stinging pain associated with losing a limb or paralyzation. If you are experiencing pain and discomfort as a result of an accident, you may want to pursue this type of damage in your claim.
Mental Anguish and Emotional Distress
Mental anguish is categorized by emotions such as fright, anxiety, grief, humiliation, or depression. In order to claim this category of damages, the emotions must be tied to an accident or injury and have a lasting impression on the emotional state of the victim. Mental anguish and emotional distress are often used interchangeably to describe the claims within this category.
To pursue emotional damages, the claimant will need well-documented evidence of their emotional or mental state following the incident. This could be new medications, visits with medical or psychiatric professionals, and testimony from expert witnesses.
For example, in a recent defamation case, the claimant sought emotional distress damages due to the changes in their behavior post-defamation and how heavily it affected all areas of their professional and personal life. According to the American Bar Association, a victim of defamation is more likely to become agitated, paranoid, or obsessed with the attacks on their reputation, causing intense emotional strain, which in the case above led the claimant to stop going to work and closing themself off from friends. The obvious change in their mental state and prolonged periods of depression, as a result, were grounds for the damages to be granted.
Dissatisfaction with Life
If your ability to enjoy or engage in life has decreased following an incident or accident, you may be able to pursue this category of damages. In a recent case where an outgoing individual fell and suffered a major concussion, causing extreme changes to their behavior and moods, these damages were pursued. Pre-accident, they were described as the life of the party. However, post-fall, their behavior did a complete turnaround. The injury affected all aspects of their life, from personal relationships to their ability to keep up at work, resulting in extreme depression and dissatisfaction with their life post-accident.
Permanent Disfigurement or Disability
A permanent injury can significantly alter the way a person lives their life. These damages are pursued when an injury leaves the person physically altered or unable to perform daily living actions as they once did. For example, a person who loses a body part in a car accident and now needs permanent assistance to get around and live could include this category of damages in their claim.
Loss of Companionship/Consortium
Loss of companionship or consortium (these phrases are interchangeable) is defined as the loss or impairment of the non-monetary benefits in a marriage. A spouse provides companionship, love, and affection, but even further consortium includes shared housework, activities, and their sexual relationship. The loss of any of these benefits would be included under this category of damages. In most states, this category is heavily restricted to married couples, meaning that unwed couples may not always be able to pursue damages no matter the length of their relationship. In some states, the loss of consortium can be used for parents who have lost their children in a wrongful death or fatal injury.
Factors That Influence Personal Injury Settlement Amounts
If you browse the settlements from other cases, you might notice that the amounts range significantly across all categories. There are many reasons for this. No two case details are exactly the same. From the circumstances surrounding the case, the extent of the injury, and the coverage of insurance, many factors can influence the payout amount. The section below will explore the factors that influence a personal injury settlement.
Extent of Injury
One of the first factors that will be examined when seeking damages is the extent or severity of the injury. Lower settlement amounts are often seen in cases where the injury was mild or quickly resolved. The more severe the injury, the higher the settlement is likely to be. This is due to the cost of medical care, permanent lifestyle changes, potential disfigurement, or other suffering experienced by the victim.
Another factor that can result in a wide range of settlement numbers will be the medical care needed by the victim. Damages should include all reasonable care related to the claimant’s injury. This means that all past medical expenses and future care. Cases with severe injuries and permanent care will see higher settlement amounts as a result.
In most personal injury cases, the claimant negotiates with the defendant’s insurance company and not the defendant themselves. Most insurance policies have restrictions and limits to what they are able to cover. Therefore, the resulting settlement will depend heavily on the amount the insurance company has available to offer.
In order to have a successful case, the claimant (the person suing) must be able to prove that the defendant was acting in an unreasonable manner and, as a result, the claimant was injured. For example, if a driver runs a red light and then hits someone in the crosswalk and the person is injured, the driver would be considered responsible for the injured person’s damages. This can affect the total settlement amount depending on the percentage of negligence the person committed and how severely it affected the claimant. We’ll break down that idea a little further below.
Most states operate under the law of comparative negligence. This means that a percentage of the fault will be assigned by the court to both parties. Depending on the amount of fault the claimant is assigned, it will reduce the damages awarded by that percentage. In some states, if the claimant is found to be over 50% at fault, they will not be awarded any damages. So, if the person who filed the claim was found to be 40% at fault for the accident, and the damages were set to be $10,000, they would receive only $6,000 due to their damages being reduced by 40%.
How is Pain and Suffering Calculated?
It is important to provide clear and accurate documentation of your injuries to ensure that you are able to pursue pain and suffering damages. Medical bills, treatment records, photos of the injury, medical bills, medications, and psychiatric evaluations can all be used as evidence to support the claim. As non-economic damages do not equate to easy numbers, it is up to the claimant and their legal team to prove the validity of the pain and suffering damages. It is in the best interest of the opposing party to minimize these damages, so keeping accurate records and valid documentation will ensure fair compensation for the claimant.
The Pain Multiplier
The multiplier method determines pain and suffering by taking the total sum of economic damages (medical expenses, lost wages) and multiplying it by a set number known as “the multiplier.” The multiplier ranges from 1.5 to 5+ depending on the severity of the injury. Though it is difficult to determine what number will be chosen as the multiplier, past cases indicate that higher numbers are rare outside of cases with severe or fatal injuries.
The Per Diem Approach
The name “per diem” comes from the Latin language and translates to per day. So, as the name suggests, this approach seeks to pay the claimant based on the number of days they experience pain. For example, if the victim was actively experiencing pain for two months (60 days) following a car accident and the court placed the per diem rate at $100, they would receive $6,000 in total damages.
To ensure you get the highest payout for your claim, consider contacting an attorney to help guide you through your case. Attorneys are experienced in estimating damages and gathering crucial information to prove their validity. An attorney will guide you through the entire litigation process, keeping the process running smoothly and without avoidable setbacks. Linked below are resources for those curious about contacting an attorney or others who might need some extra help navigating a lawsuit.
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Need Some Extra Assistance?
A few other pages offer extra help to those with language barriers or just need some extra help navigating the justice system for low costs (or free!). USA.gov aims to make government services easy to access. They offer links to affordable legal help and resources for specific groups, such as the National Disability Rights Network for disabled folks, as well as others for Seniors and Veterans.
ESL or Legal Translators
If you need an interpreter, you may be able to request one through the court’s interpreter services. Check in with the court as soon as the dates are set to ensure that you have the representation you need when the time comes. The Immigration Assistance Network has legal resources on its page to ensure your rights are protected, and you have the right tools to succeed in court.
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