Calculating Pain and Suffering After a Traffic Accident
If another driver’s negligence causes you to be injured in a traffic accident of any kind, an important element of your claim is the damages you have endured, and an important part of these damages is your pain and suffering. While the pain and suffering associated with your traffic accident is less clear cut than your other damages – such as property damage to your vehicle and your medical costs and lost earnings – obtaining just compensation for your suffering is likely critical to your ability to reach your most complete recovery, which makes carefully addressing your pain and suffering in your claim essential.
Your Traffic Accident Claim
The one universal truth of every traffic accident claim is that they are all unique, which means that putting a general value on your pain and suffering before the fact is not useful. The pain and suffering you experience are situation-specific and must be calculated in accordance with the circumstances involved. As such, the best way to obtain a clear picture of the pain and suffering involved in your traffic accident claim is by working closely with an experienced traffic accident attorney from the outset. While assessing your medical expenses and lost earnings is a reasonably direct process, doing so for your pain and suffering is likely to be far more complicated.
What Constitutes Pain and Suffering?
Personal injury claims, such as traffic accident claims, allow claimants to seek compensation for their damages (or losses), and one category of loss is pain and suffering. This pain and suffering refers to the physical and emotional pain and suffering you endure as a result of being harmed by someone else’s negligence. Your pain and suffering can include all the following:
The physical pain of your injuries
The psychic pain of coping with the violent accident itself
The mental anguish associated with the difficult path forward toward healing
The PTSD-like symptoms that accident victims often experience
The emotional injuries you sustain
The trauma associated with serious car accidents can lead to any number of emotional consequences, including the following:
Severe mood swings
Increased anxiety which can include anxiety attacks
Bouts of depression
Increased irritability and lashing out
A tendency to self-isolate and/or push others away
Fear of getting back behind the wheel
Sleep disturbances, including nightmares and/or night terrors
Feelings of hopelessness
Inability to concentrate and other cognitive disturbances
Diminished capacity to enjoy life and/or those activities that were formerly enjoyable
One of the most difficult aspects of these effects is that they can push the support of your friends and loved one’s away just when you could use it most. Ensuring that your pain and suffering is well represented in your traffic accident claim is foundational to your ability to receive just compensation.
Your Physical Pain and Suffering
The kinds of injuries that are very closely associated with significant physical pain and suffering include:
Back injuries that lead to a lingering and even chronic back pain
Head injuries that lead to chronic headaches and even migraines
Neck injuries, including whiplash (which is closely linked to chronic pain and significant losses in the range of motion)
Traumatic brain injuries (TBIs), which can be as physically painful as they are emotionally painful
Injuries that cause nerve damage
Broken or fractured bones, which can lead to chronic pain
Organ damage and other forms of internal damage
The full burden of this physical pain can be difficult to assess because it can be difficult to accept. No one wants to feel like a whiner, and many people believe if you cannot see the damage, it is not real, but nothing could be further from the truth. The physical and emotional pain you experience is very real, and it should be addressed head-on in your traffic accident claim. You owe it to yourself and to your recovery.
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Proving Pain and Suffering in Your Traffic Accident Claim
Proving your pain and suffering is obviously less straightforward than proving your lost earnings or your medical bills. This does not, however, make it any less important. When you go about attempting to demonstrate the depth of your pain and suffering, several factors can play a role.
Your doctor and medical team, who treat you from the beginning, are an excellent resource when it comes to demonstrating the degree of pain and suffering you have endured. For example, when your doctor asked you to rank your pain early on (and throughout the process), the information gathered can help bolster your claim down the line. Further, all the following may prove beneficial:
Professional notes from your doctor, therapist, and other medical professionals
Medical evidence from your doctor appointments, such as from X-rays and other kinds of medical tests
The expert opinion of a medical professional with considerable experience treating injuries like yours
Your Own Assessment
Your own assessment of your experience can also prove very powerful. For example, writing down your recollections regarding how the accident happened (and your feelings and experiences at the time) can help keep your memories about not only the accident but also your reaction to it fresh. Further, keeping an ongoing diary can help you manage your memories, feelings, and thoughts regarding your pain and suffering, which can prove elusive if you simply attempt to commit them to memory. An important point to keep in mind is that the judge or jury who decides your case understands the kind of pain you describe. They are human, and they recognize what you have had to sacrifice as a result of being injured by someone else’s negligence. For example, if you can no longer pick up and carry your grandchildren, they understand how painful this is to you personally. You do not need scientific evidence to share the immense impact that the pain you have suffered has had on your life.
The Input of Others
Other people can also weigh in on how the accident in question has scarred you emotionally. In fact, such third-party testimony is often compelling. After all, these are people who have a keen eye and a unique perspective for how the accident has harmed you in terms of living your life to the fullest. Your support system may even spy consequences that you – in the stress and turmoil of the situation – fail to recognize. Neutral witnesses, such as coworkers who you are not particularly close to but who notice the changes you have undergone, can offer some of the strongest evidence because these witnesses have no reason to overstate or embellish their testimony, which makes it very difficult for the other side to accuse them of bias.
The Multiplier Method
A common mechanism for determining the value of pain and suffering for personal injury claims in the State of Texas is the multiplier method. This involves tabulating the extent of your economic damages, including your medical expenses and lost earnings, and multiplying them by a number between 1.5 and 5 to assign a value to your non-economic damages, which include your pain and suffering. Let’s consider a very basic example that includes the following facts:
You suffered a catastrophic injury that leaves you unable to work as a result of another driver’s negligence.
Your medical expenses and lost earnings total $1 million in economic damages.
From here, a number will be assigned that corresponds with the seriousness of your accident, and because your injuries are catastrophic and life-altering, that number will likely be 5 (the top of the scale). In order to calculate your pain and suffering, your total economic damages will be multiplied by 5, leaving you with $5 million in pain and suffering. Although this is an over-simplified example, it helps to clearly demonstrate how the multiplier method works.
The Insurance Company’s Approach
The insurance company is guided by profits, which means that it is going to do what it can to keep your settlement (including your compensation for pain and suffering) as low as possible. Toward this end, it may fall back on one of its tried-and-true approaches.
Denying the Severity of Your Damages
The insurance company may come after your claim regarding the severity of your pain and suffering. While the economic damages can be more difficult to refute, your pain and suffering is something the insurance company may feel perfectly comfortable denying. It is important to note, however, that just because the insurance company claims something does not make it so. If the insurance company refuses to address your traffic accident claim fairly, the law will have the final say in the matter.
Offering You an Early Settlement
If the insurance company offers you an early settlement offer that includes compensation for your pain and suffering, it can be tempting to take the money you need so desperately and to worry about whether or not it is adequate to cover your damages at a later date. The insurance company is counting on you to let your desperation guide you, but you should not be fooled. An early settlement offer is a very good sign that the insurance company recognizes the serious nature of your claim and is trying to finalize it before you are completely aware of how extensive your damages actually are (including your pain and suffering).
Another tactic the insurance company may try is attempting to shift fault toward you (and off of their policyholder). This, however, is not a matter that requires the insurance company’s opinion. Instead, it will be borne out by the evidence in your claim (as skillfully compiled by your traffic accident attorney). While having this blame foisted upon you can leave you feeling discouraged, you should not lose hope. This tactic amounts to the insurance company engaging in posturing and hoping to get under your skin. An important point to make here is that, even if you do share fault in the matter, the State of Texas does not bar you from seeking the percentage of your damages that the other driver is responsible for (as long as he or she is at least 50 percent to blame). Consider the following example:
If you were exceeding the speed limit when the accident happened, you might be found 10 percent responsible for the ensuing traffic accident.
This means that the compensation you are ultimately awarded will be reduced by the 10 percent you were found to be at fault.
If your damages ultimately total $100,000, this amount will be reduced by 10 percent – leaving you with $90,000 in total compensation.
Do not give in to the insurance company’s bullying or attempts to cajole you.
Prolonging and Complicating the Claims Process
Another technique the insurance company may employ is making the claims process, which is – by all accounts – complicated and lengthy enough, even more convoluted. By making the process utterly laborious and confusing, the insurance company is hoping that you will accept a settlement amount that is less than the amount to which you are entitled out of sheer frustration (and desperation). Moving beyond the insurance company’s red tape can feel like such a relief that it is worth accepting less than you are owed. There are laws against practices such as this, and your skilled traffic accident attorney will fight to ensure that your legal rights are upheld and that the insurance company closely adheres to the laws that govern that industry.
RELATED READINGS: Protecting Your Car Accident Claim
Discuss Your Claim with an Experienced Killeen Traffic Accident Attorney Today
If you have been injured by another driver’s negligence, Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is a trusted traffic accident attorney with the experience, keen legal insight, and commitment to skillfully advocate for compensation that addresses your damages in their entirety, including your pain and suffering. We are on your side and here to offer our help, so please do not hesitate to contact or call us at 254-501-4040 for more information today.