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:
Since most car accident cases settle before trial (with many reaching resolution via the insurance claim process, without a lawsuit ever being filed), we'll be discussing pain and suffering in the context of a car insurance claim.
(Note: If you live in a mandatory no-fault car insurance state, 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.)
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.
It's important to understand that any insurance company handling a bodily injury claim begins its analysis with one very important assumption: If you didn’t go to the doctor, you’re probably not in any significant pain.
Though there are exceptions to every rule, the insurance company often assumes that:
These assumptions affect how insurance adjusters value an injury claim, and the "multiplier" used in the so-called car accident settlement formula that's sometimes used to calculate pain and suffering damages.
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.
In determining the value of your pain and suffering, the insurance company will review a variety of supporting documentation, including:
If you're thinking about filing an injury claim after a car accident, learn how a car accident lawyer can help.