(914) 220-1086When a person is injured in an accident, they may have visible, more obvious injuries and losses. For example, they might have a broken bone and lost wages from missing work due to the injury. However, in many accident cases, a person will also have less visible injuries, such as physical pain and emotional trauma experienced after an accident.
In a personal injury case, these types of losses are referred to as pain and suffering damages. Recovering for pain and suffering is often challenging, as insurance companies frequently try to minimize these damages or argue that the victim’s injuries are not as severe as claimed. Our New York personal injury lawyers are experienced at developing evidence to support a pain and suffering claim and helping our clients get maximum compensation for their losses.
Based in White Plains, the Law Office of Thomas L. Gallivan represents clients throughout New York in all types of personal injury cases, including motor vehicle accidents, slips and falls, pedestrian accidents, and construction accidents. We understand that pain and suffering damages are critical to helping our clients become whole again after an accident. Reach out to our law firm today to schedule a free consultation with a New York pain and suffering attorney.
What Is “Pain and Suffering” in a Personal Injury Case?
In the legal context, pain and suffering refers to the physical and emotional distress a person experiences after an injury. More specifically, it is a category of compensation that a person can recover after an injury caused by another person’s negligence, recklessness, or intentional conduct.
Unlike medical bills or lost income, pain and suffering damages are considered non-economic damages. They do not have a fixed dollar value or paperwork attached to them to document the amount of pain and suffering that a person has experienced. Instead, they compensate an injury victim for the real (but harder to quantify) impact that an accident has had on their lives.
Pain and suffering damages may include money for a person’s:
- Physical pain from their injuries and the medical care needed to treat those injuries
- Chronic or long-term pain
- Emotional distress or mental anguish
- Anxiety, depression, or trauma related to the accident
- Loss of enjoyment of life
- Inconvenience or lifestyle limitations
- Sleep disturbances
- Loss of independence
In cases involving serious or catastrophic injuries, these non-economic damages can often exceed the value of an accident victim’s financial losses (economic damages).
Pain and suffering damages are often broken down into two components. First, there is physical pain and suffering, which is the actual bodily pain and discomfort experienced as a result of injuries. For example, if a person breaks a bone in a car accident, they will experience pain from the fracture.
Physical pain can continue long after an injury occurs, especially when injuries require ongoing treatment or cause a permanent disability. For example, a person who suffers whiplash in a rear-end car accident might suffer from chronic headaches long after the crash. Similarly, if a person has nerve damage after being hurt in a fall, that condition may be permanent and cause lifelong pain.
Second, accidents can also have profound psychological effects. Emotional pain and suffering can include things such as:
- Post-traumatic stress disorder (PTSD)
- Anxiety (such as being scared to drive after a car accident)
- Depression
- Emotional trauma
- Distress about permanent scarring or disfigurement
- Fear of future medical complications
For many accident victims, these emotional consequences can be just as life-altering as physical injuries. A person might recover from a physical injury in a matter of weeks or months, but the emotional scars may last for years. That is a big reason why getting adequate compensation for pain and suffering damages is so important.
How Pain and Suffering Damages Are Calculated
Because pain and suffering doesn’t come with a price tag, determining the value of these damages can be complicated. There are several factors that are considered when developing an estimate for pain and suffering damages.
The seriousness of the injury is one of the most important factors in estimating pain and suffering losses. Catastrophic injuries, such as spinal cord injuries and traumatic brain injuries, typically result in higher pain and suffering awards. More minor injuries, like a simple fracture, will usually lead to lower pain and suffering awards.
Similarly, the length of time it takes a person to recover from their physical injuries plays a role in the evaluation. Generally, the longer that it takes for a victim to recover, the more significant their pain and suffering damages will likely be. For example, a severe injury that requires multiple surgeries and years of treatment may lead to higher compensation.
Next, the impact of an injury on a person’s daily life will be considered. This can include things like a person’s ability to work, difficulty in performing household tasks, loss of ability to participate in hobbies, and limitations on physical activity. If an avid biker will never be able to get on a bicycle again because of their injuries, that will play a role in their total pain and suffering compensation.
Another factor to be considered is whether a person has a permanent disability or disfigurement, such as loss of mobility, amputations, permanent nerve damage, or visible scarring. Permanent injuries often lead to larger pain and suffering awards because the effects may last for the rest of the victim’s life.
Finally, any evidence of emotional and psychological effects will be considered. Documentation of emotional trauma, anxiety, depression, or PTSD can increase the value of pain and suffering damages.
How Insurance Companies Estimate Pain and Suffering Damages
Insurance companies are motivated to minimize pain and suffering damages as much as possible. Unlike economic damages, pain and suffering damages are typically not supported by hard evidence (like an invoice or paystub). This gives insurers an opportunity to try to downplay pain and suffering damages as much as possible.
Insurance companies use two common methods to estimate pain and suffering. The first is the multiplier method. Using this method, the victim’s economic damages (like medical bills and lost wages) are multiplied by a number. This number is usually between 1.5 and 5 and is based on the perceived severity of the victim’s injuries.
For example, a person suffered $100,000 in medical bills and lost wages. The severity of the injuries was determined to be a “3,” so the pain and suffering estimate would be $300,000. This method relies on the insurance adjuster’s opinion of the seriousness of a person’s injuries.
The second method that is commonly used is the per diem. This method assigns a daily value to an accident victim’s pain and suffering, and then multiplies it by the number of days that the victim is expected to experience pain. Again, this method relies on the insurance company estimating the seriousness of a person’s injuries.
For example, an insurance company may estimate a person’s daily pain value at $200 per day, with a duration of 365 days. This leads to a pain and suffering estimate of 365 days.
These insurance company estimates are just that: estimates. Judges and juries may consider them if a case goes to trial, but they are not bound by these estimates. They may also be used during negotiations.
Proving Pain and Suffering in a Personal Injury Case
Pain and suffering damages are subjective. This means that you need strong evidence to support a claim and to counter the insurance company’s own estimate of your losses.
Our New York personal injury lawyers use several types of evidence to support a claim for pain and suffering. This may include:
- Medical records: This documentation can show the severity of the injuries, treatments received, and the patient’s reports of pain. It can also show details of the diagnosis, surgical procedures, any medication prescribed for pain management, and long-term treatment plans.
- Medical expert testimony: Doctors may testify about the extent of an accident victim’s injuries and the expected long-term impact on their health and lifestyle.
- Photographs: Pictures and videos of injuries, scars, or medical devices can help to demonstrate the seriousness of a victim’s condition.
- Personal journals: A diary can be used by an accident victim to document their daily symptoms, emotional struggles, and limitations caused by their injuries.
- Testimony from family and friends: People close to the accident victim can describe how the injury has affected their loved one’s personality, mood, physical abilities, and overall quality of life.
Remember: insurance companies are known to aggressively fight claims for pain and suffering damages. The best way to get the compensation that you deserve is by working with an experienced New York pain and suffering attorney.
This also means that you should never accept a settlement offer from an insurance adjuster before talking to a lawyer about your case. Initial settlement offers rarely account for the full scope of a person’s losses. In particular, this first offer will almost certainly not include sufficient money for your pain and suffering.
If you accept a settlement, you will be required to give up the right to sue the at-fault party. Even if you discover that your injuries are more extensive than you thought or that the emotional impact is more severe than you believed, you won’t be able to seek additional compensation. For this reason, you should never talk to the insurance company, sign paperwork, or accept a settlement before talking to a New York personal injury lawyer.
Compassionate Legal Representation for New York Accident Victims
Pain and suffering is a critical component of any personal injury settlement. While insurance companies may try to downplay it, getting money for these losses is vital to moving forward with your life. Our law firm can help you get the compensation that you deserve.
The Law Offices of Thomas L. Gallivan represents clients throughout New York who have been hurt in all types of accident cases. We handle all cases on a contingency fee basis, which means that you will never pay a fee unless we recover money for you. To learn more, call our law firm at 914-220-1086 or fill out our online contact form to schedule a free consultation with a New York pain and suffering attorney.
