Understanding Pain and Suffering in a Texas Personal Injury Claim
If you have been injured in an accident that was caused by someone else’s negligence, you likely have property damage to your vehicle (if the accident was a traffic accident), physical injuries, and lost earnings to contend with, but another common damage (or loss) associated with personal injury claims is emotional and physical pain and suffering. While it is more difficult to quantify the pain and suffering you endure, the fact of the matter is that pain and suffering is all too real, and better understanding the role it will play in your personal injury claim is too important to ignore.
Before we explore non-economic damages (pain and suffering), it is important to take a look at economic damages. These are the losses you endure as a result of the injury-causing accident that are readily associated with a price.
You have suffered physical injuries that require medical attention, and even though your injuries may require ongoing medical care and can lead to secondary health complications, the cost can ultimately be tallied (and predicted into the future). Common medical expenses include:
The emergency care you receive at the scene of the accident and the emergency transportation that carries you away from the scene of the accident
Any surgical care you need (and all follow-up care)
Medical treatments, procedures, and testing
Care from doctors and specialists
Pain management services
Physical and occupational therapy
While you tend to the difficult task of recovering your health and well-being, you will likely be off the job for a significant amount of time, which typically means lost earnings. If your injuries are serious and negatively affect your career, you could also be looking at losses in your earning potential into the future.
These are losses that can be immense, but they can also be calculated and can be well represented in your personal injury claim. Your pain and suffering, on the other hand, is a bit different.
Your Pain and Suffering
The pain and suffering you experience as a result of the accident that leaves you injured can be overwhelming, but it remains difficult to put a value on. Pain and suffering is considered non-economic damage (because it is not associated with a price tag), and in addition to the physical pain and suffering you endure (which can include chronic pain), it can manifest in all the following ways:
PTSD-like symptoms and other psychic trauma
The permanent damage that results in the loss of an important bodily function
Permanent scarring and disfigurement
Emotional consequences can include severe mood swings, emotional lability, sleep disturbances like nightmares or night terrors, accident flashbacks, and more
Increased anxiety can include anxiety attacks (also called panic attacks)
The onset of depression
Loss of enjoyment in life
Diminished quality of life
Any one of these effects can prove life-altering and can be exceptionally challenging to move beyond. The more serious your injuries and the longer it takes to recover from them (if that is a possibility), the higher the value that will be attached to your pain and suffering in your personal injury claim.
RELATED READINGS: How Pain and Suffering Is Calculated in Texas Personal Injury Cases
Calculating Your Pain and Suffering
In the State of Texas, there is no standard calculation method for assigning a value to pain and suffering in a personal injury claim, but there are two methods that are commonly employed.
The Per Diem Method
The per diem method is generally reserved for those injuries in which there is a recovery date associated, which means those injuries that are less serious and for which your recovery is fairly predictable. The per diem method assigns a specific dollar amount to each day of your healing process, and this dollar amount generally correlates with one’s daily salary. This per diem amount is multiplied by the number of days it will take you (or has taken you) to reach what is known as your maximum medical improvement (MMI). If, for example, you earn an average of $200 per day and it takes you 75 days to reach your MMI, your pain and suffering will be calculated at $15,000 ($200 x 75).
The Multiplier Method
The multiplier method is commonly used in more serious accidents in which the injuries are long-term or catastrophic. In this method, a number from 1.5 to 5 (usually) is assigned to your pain and suffering, and the more serious your injuries, the higher the number (5 is usually reserved for catastrophic injuries). This number is used to multiply your total economic damages, and the result is the amount of your compensation for the pain and suffering you have endured. For example, if your medical bills and lost earnings total $200,000 and your serious injuries are assigned the multiplier of 3, your compensation for pain and suffering will be $600,000, and your total compensation will be $800,000 ($200,000 + $600,000). While this is an oversimplified view, it helps to explain the basics. It is also important to note that juries have considerable discretion when it comes to calculating pain and suffering and that insurance companies are well aware of this fact, which can make them more amenable to negotiating fairly.
Assigning a Multiplier Number to Pain and Suffering
Calculating the extent of pain and suffering is very difficult to do because it is so subjective. Living with pain is incredibly difficult, and juries understand this truth. Juries generally take the following kinds of factors into consideration when determining a multiplier number to use in a personal injury case:
The nature and severity of your injuries overall
How your injuries affect your life in the present and how they will affect your life in the future (how your life has changed as a result of the pain and suffering and how it will continue to change)
How your injuries affect your family life
Your age, health, and income level prior to the accident
RELATED READINGS: Calculating Pain and Suffering in a Texas Personal Injury Case
Proving Pain and Suffering
Anyone who has ever suffered even a minor injury understands that pain and suffering is real, and this commonsense approach will play a role in determining the value of your pain and suffering, but there is more to it than that. First of all, the people who make up juries (because they are people) understand that a serious injury can upend one’s life in ways that are difficult to assess, but that are, nonetheless, very real, and this will play an important role in your personal injury case. Additionally, there are some mechanisms that are commonly used to help prove the degree of an injury victim’s pain and suffering, including:
Notes made by the victim’s doctors
Relevant medical evidence
Photographs of the victim’s injuries at various stages
Personal journals that document the victim’s pain and suffering over time
Notes made by the victim’s therapist or mental health counselor
Testimony provided by friends and loved ones of the victim (who are attuned to the changes he or she exhibits)
The more significant the evidence in your case, the less challenging it will be for you to demonstrate exactly how significant your accident-related pain and suffering is.
Keeping a Journal
One of the most important things you can do to help ensure that your pain and suffering is well represented in your personal injury claim is to keep a journal that you write in each day (beginning as soon after the injury-causing accident as possible). Points to keep in mind include:
Use the standard medical pain ranking system, which assigns a number from 0 to 10 that corresponds with your pain level each day. This will help you keep track of your improvement but will also help the insurance company, judge, or jury (depending upon what direction your claim goes in) better understand your overall pain and suffering.
Write down everything you remember about the accident itself as soon afterward as possible. The fact is that memories can fade quickly (especially in the face of stress, fear, anxiety, and pain), and this memorialization can prove invaluable not only as evidence of your pain and suffering but also as evidence in relation to the accident itself.
Jot down the physical difficulties your pain and suffering caused and the physical limitations you experience on a daily basis, but do not forget to also comment on the emotional setbacks and difficulties.
Compare your pre-accident life to your post-accident life.
Discuss the matter of your pain and suffering with your friends and loved ones, and record their observations regarding how the accident has affected your life (from their unique perspectives).
Do not be afraid to share the difficult feelings and experiences you face. Your personal account can prove to be powerful and profound evidence of the pain and suffering you continue to endure.
If you have questions or concerns about the pain and suffering factor in your personal injury claim, the answers to the most frequently asked questions can help.
What is the most important thing I can do to demonstrate the extent of my pain and suffering?
The most important step you can take after being seriously injured in an accident that was caused by someone else’s negligence (after seeking the medical attention you need) is consulting with an experienced personal injury attorney. Your attorney will skillfully endeavor to build your strongest claim, which incorporates your complete damages, including the full scope of your pain and suffering.
What should I do if I cannot afford a personal injury attorney?
The good news is that you can afford a personal injury attorney, and if you have endured considerable pain and suffering, having a dedicated personal injury attorney in your corner is the best way to improve your ability to recover fully. Personal injury attorneys work on contingency, and this means that their pay is contingent upon their clients obtaining a settlement or court award. You will not need to worry about paying your attorney until you receive a settlement from the insurance company or until the court awards you compensation for your case, and at this time, your personal injury attorney will receive the percentage of your compensation that was prearranged when you hired him or her.
Will my claim go to court?
You have been through quite enough, and the thought of going to court may be a bridge too far, but it is important to understand that the vast majority of personal injury claims are settled with the insurance company out of court, and yours is very likely to do the same. Further, if you have experienced significant pain and suffering, the insurance company recognizes that it may do better by negotiating a fair settlement than by taking its chances and leaving the matter to the discretion of the jury (which will likely understand human suffering only too well). Only if the insurance company refuses to negotiate fairly will your personal injury attorney advise you to file a lawsuit against it, and the act of filing a lawsuit may inspire the insurance company to reevaluate its stance to begin with – and to dig a bit deeper in terms of fair negotiations.
It Is Time to Consult with an Experienced Killeen Personal Injury Attorney
If you have been injured by someone else’s negligence, the path toward healing can be long and difficult, and if you have endured significant pain and suffering, it can be more so. This is why attorney Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, dedicates his impressive practice to skillfully defending the rights of clients like you – in dedicated pursuit of compensation that covers your full range of damages, including your pain and suffering. Our accomplished legal team is on your side and well prepared to help every step of the way, so please do not wait to contact us online or call us at 254-501-4040 for more information about what we can do for you today.