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Calculating Pain and Suffering In Negligence Cases

The term pain and suffering frequents the courtroom and is especially frequent in personal injury cases. Many claimants use the term pain and suffering with little knowledge of what it actually means.  Pain and suffering is the legal term for physical and mental stress caused by an injury.  This definition classifies pain and suffering into physical or psychological distress categories. Every personal injury claim can have an element of physical and mental anguish. When claiming pain and suffering, it is fundamental to be acquainted with the process an insurance company goes through in determining a settlement. Parties who are attempting to recover damages must also be abreast to the process of how to calculate losses.  

Pain and suffering through physical and mental anguish can be part of the same claim, but there are also distinct differences. The thread that ties the two together is that both must stem from the actual injury, and must result from the negligence of the accused.  For example, an individual who has been a therapy due to depression for years prior to an injury cannot claim that their long-standing treatment was part of their pain and suffering. Physical pain and suffering is the pain of the plaintiff’s actual physical injuries. It is not limited to the pain that a claimant has endured to date, but also the detrimental effects that an individual is likely to suffer in the future. Mental pain and suffering can also result from physical injuries sustained. Mental pain and suffering consists of any type of negative emotion that an accident victim suffers as a direct result of the trauma from injuries.  Mental pain and suffering embodies emotional distress, loss of enjoyment of life, fear, anger, humiliation, anxiety, and shock. In more severe cases of mental pain and suffering can include anger, depression, loss of appetite, lack of energy, sexual dysfunction, mood swings, or even sleep disturbances. In the most severe cases of mental pain and suffering a claimant can suffer from post-traumatic stress disorder.

A plaintiff who sustained severe injuries in a car accident that caused multiple broken bones could have a claim of pain and suffering. In addition to recovering damages for medical, bills, and lost wages, there could be a claim of pain and suffering in certain circumstances. If the injured party suffered from depression, difficulty sleeping and experienced a significant loss of enjoyment of life that resulted from the accident they could be entitled to compensation for mental pain and suffering due to the accident. In a less austere example, an individual who suffers a sprained ankle due to an accident could have a claim of pain and suffering. The plaintiff could have been training for a marathon and was not able to run because of the injuries sustained in the accident. As a result of missing the marathon, the plaintiff could be angry, lose enjoyment in life, and may even suffer some mild depression. These will still qualify for mental pain and suffering claim under these circumstances.

In all circumstances of pain and suffering, whether it is physical or mental pain, it is possible to recover damages. Proving that suffering took place can take a multitude of forms. The extent of the injuries sustained and accompanied pain can be evidence in an attempt to recover. For instance, any reasonable adult knows that there is inherent pain associated with a broken bone. Documentation plays a crucial role in proving of pain and suffering. Photographs documenting the injuries, and journals from the injured party can serve as documentation in an attempt to establish and recover damages. Witnesses or friends of the plaintiff can testify to the negative impact physically and emotionally that the plaintiff has suffered as a result of the damages. Finally, a mental health professional can provide credible testimony as to the mental state of the plaintiff following the injuries. The mental health professional can explain how the plaintiff is now suffering from anxiety, depression, or fear resulting directly from the accident.

When an insurance company believes that a genuine claim for pain and suffering can be made the adjuster may make a personal injury settlement offer, several approaches may be taken in calculating what the pain and suffering is worth. The two most common methods are the multiplier method and the per diem method. The multiplier method is a common approach taken and is done by adding up all the special damages and then multiplying those by a number between 1.5 or as high as 5. Special damages are easier to economically quantify because they include items such as medical bills. The multiplying number will be based on numerous factors. The factors in determining factors can consist of the severity of the injury, prospects for a quick and complete recovery, and the impact of the plaintiff’s injuries on day-to-day-life.

Plaintiffs may also try to use a per diem rate. The idea behind the daily rate is to demand a specific dollar amount for every day that a plaintiff has been forced to live with the pain that resulted directly from the injury.  It can be challenging to ensure that the daily rate received is reasonable. A good standard to use is to base the daily rate off of the actual earnings of the injured party. The line of thinking in using this rate is that the effort of having to deal with pain every day is compatible with going to work every day.

When an injury occurs, there can be accompanying pain and suffering. When there is pain and suffering associated with an injury, it is crucial that the injured party documents all actions affiliated with the injury. A plaintiff who is perusing an pain and suffering claim will need to gather credible witnesses who can attest to the suffering they had in addition to any documentation they brought to court. Additionally claiming pain and suffering will need to be attached with a rate. Determining this rate will best help an injured plaintiff to recover the maximum amount of damages. Recovering damages in the form of finical compensation can help a plaintiff move past and pain and suffering that resulted from an accident. If you or a loved one has been injured in an accident please contact us.  You will speak with one of our personal injury lawyers who can best answer your questions and provide options.  There is no fee for the initial consultation.

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