A key component of many car accident cases—especially those involving significant injuries—is the claimant's "pain and suffering." But putting a monetary value on this type of harm is notoriously difficult. In this article, we'll look at:
Generally speaking, there are two types of pain and suffering that accompany a claim for bodily injury. The first is for physical pain and suffering, and the second is for the mental anguish that accompanies a physical injury. The law characterizes both as components of "general damages."
You cannot see pain in a person. A doctor might be able to observe symptoms, such as limited ranges of motion in a joint, or tenderness upon touching a certain part of your body. But those are typically just indicators of pain.
Even if the presence of pain is unquestioned, it's still difficult to determine the severity of the pain. Every person is different, with different thresholds of discomfort. A level of pain that may send one person to the ER in the middle of the night may send another to the medicine cabinet for an over-the-counter painkiller.
With many types of car accident injuries, because the nature of the injury is common knowledge, there is a presumption that it will be painful. For example, we all know that a broken bone requires medical treatment, possibly even surgery. The bone break will require a healing period that often includes immobilization in a cast. Sometimes the break is so severe that pins or screws must be inserted to help the bone heal. We know from our common experiences that the injury and the recovery can cause extensive physical and mental suffering.
But what happens when the injury is less obvious? For example, soft tissue injuries are common in car accident claims, and can take many forms. Bruises or cuts are evident even to the layperson, but other types of soft tissue injuries are less obvious. Whiplash-type injuries and damage to muscles, ligaments, and tendons do not show up on x-rays. Yet almost all of us have experienced muscle strains, and we know that the pain is very real and sometimes severe.
Get more details on the basics of pain and suffering in a personal injury case.
If you live in a state that follows a no-fault car insurance system, and your car accident injuries don't meet your state's threshold for filing a liability claim against the at-fault driver, you can't get "pain and suffering" damages as part of your no-fault car insurance claim.
Similarly, if you file a claim under your own "personal injury protection" or "medical payments" car insurance coverage after a car accident, the insurance company won't compensate you for your pain and suffering; only certain out-of-pocket losses (medical bills, lost income, and so on) are available under those kinds of claims.
Most car accident cases settle as part of the insurance claim process, well before a court trial, and many reach resolution via the insurance claim process without a lawsuit ever being filed. Settlement of a car accident claim can happen in a matter of weeks, but it may take a year or more if the injured claimant is still receiving medical treatment and the full extent of the claim's value isn't clear.
That's an important point to keep in mind: faster isn't always better when it comes to settling a car accident case, especially if your injuries are serious and you're not yet sure when you'll fully heal and how your life might be impacted in the meantime. Particularly when it comes to the "pain and suffering" component of your damages, it's crucial to wait until you have a complete picture of your losses before you accept the insurance company's settlement offer.
It's important to understand that any insurance company handling an injury claim after a car accident begins its analysis with the nature and extent of the medical treatment you received after the crash. Though there are exceptions to every rule, the insurance company often assumes that:
These assumptions affect how insurance adjusters value an injury claim.
After a car accident, if you chose not to seek medical treatment, the insurance company will probably not attach much value to your claim. From the insurance company's position, it's just your word that you were injured and that you're experiencing pain and suffering. That's a big reason why it's crucial to get necessary medical attention after a car accident, especially considering that car accident injuries often don't show up right away.
Take the situation where you have a soft tissue injury that's not readily observable. If you seek medical treatment for that injury, the doctor will listen to the description of your symptoms and conduct a physical examination. The doctor will then note in your medical records that you complained of pain or discomfort in certain areas of your body following the car accident. The doctor's notes will also include findings from the physical examination.
The insurance company will then request your medical records as part of your injury claim evaluation. To the insurance company, the fact that you took the time to go see the doctor is in itself some evidence of the validity of your injury. The same applies to any lost time from work. Most people don't get paid unless they show up for their jobs. So, if you were off work as a result of a car accident, this also tends to support your claim that you have experienced pain and suffering following the accident.
Every car accident claim (and every claimant) is unique, but the specific "manifestations" of pain and suffering in a car accident claim might include:
There's no universal method through which insurance companies analyze the four "manifestations" listed above (and others) and figure out an injury claimant's pain and suffering, but let's look at two of the most common techniques.
One of the most common techniques for calculating pain and suffering is to add up the claimant's medical bills stemming from their car accident injuries, multiply those by a number between 1.5 on the low end, and 4 or 5 on the high end.
The value of the multiplier (again, which usually ranges from 1.5 to 5) depends on a number of factors specific to the case, including:
Let's look at how this might work with a claimant who was injured in a rear-end car accident, where fault was clear. The claimant suffered a concussion, bruised sternum, and cuts and bruises, with medical bills totaling $4,000. The insurance adjuster decides to use a multiplier of 2.5, since the claimant's injuries were significant but not severe, and complete recovery was achieved within a few weeks. So the adjuster multiplies the $4,000 in medical bills by 2.5, and arrives at a $10,000 pain and suffering figure.
Under the less commonly-used "per diem" (Latin for "per day") method, the insurance adjuster tries to assign a certain dollar amount to every day the claimant had to deal with the physical and mental effects of the accident and resulting injuries. Coming up with an appropriate daily rate is tricky, and this method probably isn't conducive to valuing pain and suffering related to long-term (or permanent) injuries.
In determining the value of your pain and suffering, the insurance company will review a variety of supporting documentation, including:
As we've touched on elsewhere in this article, the vast majority of car accident injury cases get resolved via the insurance claim process. It might not happen quickly, and it might feel like an uphill road, but most often the injured person and the insurance company will reach a settlement that everyone can live with.
That being said, if you and the insurance company are too far apart on a key issue (like who's to blame for the car accident, or the legitimacy of your injuries) or if the insurer simply isn't coming to the negotiating table with a reasonable offer that comes close to compensating you for your pain and suffering, it might make sense to file a lawsuit in court. At the very least, taking this step will let the insurance adjuster know you mean business, and that you're not going away without a fight. You might be surprised how quickly the insurance company "reconsiders their position" (boosts their pain and suffering settlement offer, in plain English) after they receive the court filing.
Learn more about when and how to file a car accident lawsuit.
If you're thinking about taking your car accident case to court, one big thing to pay attention to is the statute of limitations in your state. This is a law that sets a time limit on your right to file a lawsuit. In most states, you'll have two or three years to get a car accident lawsuit started in court. The deadline is shorter in some states, longer in others. But miss the deadline and your lawsuit will almost surely be dismissed, and you'll have lost your right to get any compensation for your car accident losses. If the insurance process has dragged out to the point where the statute of limitations deadline is a few months or a few weeks away, it's a good idea to get your lawsuit filed in court, just in case.
In most states, the statute of limitations that applies to car accident lawsuits is the same one that applies to all "personal injury" or "tort" cases. But a few states have carved out a separate statute for car accident lawsuits. Check the statute of limitations in your state.
So far we've focused on how an insurance company measures pain and suffering, and what you can do to help prove this crucial element of your car accident case. But it's important to keep in mind that a legal professional has the necessary experience to present your most compelling story, and to convince the insurance company, the opposing attorney, or even a jury of exactly how your car accident injuries have impacted you.
Especially if your injuries are serious, trying to handle your own car accident claim probably isn't a sound strategy. Leave the heavy lifting to an experienced attorney, so you can focus on your recovery.
If you're ready to discuss your legal options after a car accident, you can use the tools on this page to connect with a lawyer near you. Answer a few questions and get a free case evaluation. Learn more about how an attorney can help with a car accident case.