NAMING A NUMBER
It’s easy to come up with a number for the actual costs of your medical care. Doctors’ bills are black and white. “When trying to determine what value to seek in a personal injury lawsuit, I take into account the degree and severity of the client’s pain. Everybody is different and experiences pain differently. I must fully evaluate how the injury has affected the client and also keep in mind how the jury will relate,” Brad says.
While there is no formula and certainly no standardized calculation for pain and suffering, attorneys use a system to calculate the economic and general damages associated with a settlement. The two most common are the multiplier method and the per diem approach.
The multiplier method is a process by which an actuary takes a client’s economic damages (such as lost wages and medical bills) and multiples them by a number as small as 1.5 and as large as five. An actuary might multiply the number by five in the case of gross negligence but will use a smaller number if the injuries are not as serious. Other factors that affect the multiplier are your likelihood for a speedy and complete recovery as well as the impact on your daily activities. The multiplier method is the most common form of calculating general damages because it is the same process most insurance companies use.
Less common is the “per diem” method of calculating pain and suffering. This process gets its name from the Latin phrase meaning “each day.” It relies on demanding a certain dollar amount for every day you experience pain as a result of your accident.
Lawyers often disagree on the appropriate way to set a dollar amount for each day of suffering. If you miss a significant amount of work as the result of your accident, the best approach may be to use your daily earnings as a starting point. This method is fine for clear-cut cases, but when it comes to long-term pain, permanently disabling injuries, or inability to earn an income, this calculation is not effective.
THE HUMAN FACTOR
In a case, there are many considerations when a judge/jury may award a client compensation for his or her pain and suffering. They may include:
- The amount and duration of the pain you suffered
- The disruption of your daily life
- Recklessness or negligence on the part of the responsible party
- Added stress and worry
- Loss of consortium or missing out on benefits of a family relationship
- Loss of enjoyment due to long-term effects from the injury
- Emotional turmoil
“There are three roadblocks that I commonly run into during trial: Jurors, insurance adjustors and objective findings. It’s often difficult to convince a jury about the degree of pain and suffering, especially if they have a preconceived notion that mental anguish isn’t a real thing. Most insurance adjustors understand that, therefore the settlement offers are tempered based on that fact. When clients fail to document EVERYTHING, it also creates a problem. They need to be keeping track of every doctor or counselor visit and what medications they are taking,” Brad says.
In addition to medical records, Brad stresses the importance of keeping a diary. “You need to document what you are going through on a day-to-day basis. I will often include loved ones in a case so they can describe what they have observed in how the injury has affected the client’s everyday life.”
There is no certainty or guarantee that a client will get an amount they think they deserve for his or her pain. It is the jury’s job (or the judge if there is no jury) to determine what is fair, which is often based on their own life experiences. This subjectivity means that damages can vary greatly from case to case even if the underlying injury is the same.
pain and suffering
n. the physical and mental distress suffered from an injury, including actual broken bones and internal ruptures, but also the aches, pain, temporary and permanent limitations on activity, potential shortening of life, depression and embarrassment from scarring, all of which are part of the "general damages" recoverable by someone injured by another's negligence or intentional attack.