There are two primary types of damages for which you can recover after a personal injury, such as a car accident. The first of these is economic or special damages. These are the compensatory damages for which you have a receipt or paid a bill. They include things like medical bills, loss of wages, purchasing assistive equipment, and obtaining services to replace those you cannot perform.
The other type of damages is known as general or non-economic damages. These damages are also compensatory because you do receive compensation for an injury. However, calculating the value of non-economic damages is much more subjective and difficult to render because of the nature of the damages and the lack of concrete evidence of the costs.
What Class Of Damages Does Pain and Suffering Fall Into?
Pain and suffering fall into the category of non-economic damages in a personal injury lawsuit. Called general damages in some states, non-economic damages are those money damages you can recover for subjective, non-monetary losses experienced in a car accident. They include claims such as pain and suffering, emotional distress, loss of companionship and consortium, and loss of quality of life. Because you don’t get receipts for your pain or bills for your suffering, ascertaining the cost or value of these damages requires an experienced car accident lawyer.
Using A Multiplier
Whatever method a court or insurance company uses to calculate the total of your pain and suffering, they will be likely to apply a multiplier to the total of your actual damages. They will use one of two primary methods to calculate this multiplier. The amount eventually applied ordinarily ranges up to three times your actual damages. Sometimes, in the case of grievous injuries or truly egregious conduct, the court may apply multipliers as high as ten times the actual damages.
Factors Weighed In The Multiplier
So, although any claimant would obviously prefer the highest possible multiplier, you must justify the number you choose to the insurance company or the court.
Some of the factors that go into determining the multiplier are:
- Fault – The clearer the other party’s fault is, the higher your multiplier will be.
- Injuries – Your injuries must be obvious and must have been recognized by a medical professional
- Severity – The injuries should be very painful and severe—fractures, bleeding wounds, injuries requiring surgery, or that simply cannot be repaired will all justify a higher multiplier
- Treatment – The more your treatment takes place in modern professional medicine, the higher your multiplier is likely to be.
- Length of Suffering – Permanent or very long-term consequences have occurred. If you are to recover from your injury, that recovery should be likely to take at least six months for a high multiplier to be applied.
- Medical Prognosis – Your physicians should be clear that recurring, future, or degenerative problems are likely to result from your injuries.
If you can claim all or most of these from your accident, you may be able to achieve a higher multiplier than 5. Remember, though, that high multipliers are unusual. Trying to get an unjustified high multiplier will slow up the process and make everyone less eager to settle.
What Is My Pain Worth?
Insurance companies use two ways to value your pain and suffering.
The first and most commonly used method, called the multiplier method, adds together all the special (or actual out-of-pocket) damages in your case, and then applies a multiplier. Your insurance company may consider the result a fair pain valuation.
Alternatively, your insurance company may count up the days of pain you have suffered and assign a daily rate to your pain. The product of those two numbers is your basic pain and suffering value.
The choice of the multiplier depends on several factors, including the severity of your injuries, their impact on your day-to-day living, and who was at fault in the accident. Multipliers usually fall between 1.5 and 3. Sometimes, however, the injuries and other issues are so overwhelmingly in favor of the party seeking recovery that multipliers can reach 10 times the actual damages.
What Is My Emotional Distress Worth?
Most pain and suffering calculations include emotional distress. However, there are circumstances where a court might factor separate emotional distress into your settlement. Consider, for example, a young person with severe facial injuries and scarring.
In that case, the distress is not from the pain or the suffering during recovery. Rather, it is the distress of facing adolescence and young adulthood with facial scarring that can severely limit one’s willingness to participate in social interaction.
Here, an insurance adjuster or court might very well calculate this number separately from—and with a higher multiplier than—mere pain and suffering.
Pain and Suffering Isn’t Everything
Your car accident injuries are likely to have made a significant negative impact on your life, or you wouldn’t be thinking about claiming for pain and suffering. But pain and suffering do not account for all of your non-economic damages. You should also consider these other damages before making a demand for non-economic damages. These are the things that define your life and that you enjoy but can no longer do.
Inconvenience is such an innocuous word. It sounds like perhaps you’ll have a slightly higher golf handicap after your accident. If your accident has significantly impaired your ability to engage in your daily activities, including both your business and your family relationships, this is a recoverable inconvenience.
Loss of Companionship and Society
Sometimes the after-effects of an injury—scarring, emotional damage, loss of physical skills—can lead to an extreme unwillingness to be around people any longer. On the other hand, some of these same factors can make it difficult for others to be around you. In either case, this loss of companionship and society can, when severe, constitute compensable non-economic damages. Another form of non-economic damages, humiliation, can also be a factor in the loss of companionship and increase the multiplier in awarding the damages.
Loss Of Consortium Or Sexual Dysfunction
Loss of consortium is a legal term that generally refers to the loss of a family relationship but is most commonly used to mean the loss of the marital sexual relationship due to injuries sustained in your car accident. This loss may result from a sexual dysfunction caused by the accident or may result from some other aspect of your non-economic damages, such as your spouse’s reaction to scarring, paralysis, or other changes post-accident.
Loss Of Quality Or Enjoyment Of Life
The loss of enjoyment of life refers to being unable to engage in the activities that used to bring you happiness or joy. You may have been an award-winning rose grower or a breeder of championship dogs. But, if the accident has left you unable to enjoy those activities any longer, then you may recover financially from the loss of enjoyment of your life. The loss of quality of life is similar but focuses more on your ability to enjoy the things you used to do. This damage can result from loss of a limb, paralysis, or serious head trauma that interferes with motor or cognitive function.
Obviously, a permanent disability will have quantifiable special damages such as therapy and assistive equipment. However, a permanent disability also impacts your future in ways that are far less tangible. Those losses, the inability to function the ways you used to, can, if sufficiently serious, constitute recoverable non-economic damages.
Disfigurement And Scarring
Some car accidents can leave a victim with severe facial scarring that will require multiple surgeries to repair—or may not be repairable at all. Other victims might suffer an amputation that leaves them permanently disfigured. The effect of such scarring can be twofold. First, the victim may become extremely uncomfortable in company and begin to seek to avoid it.
Similarly, others may suffer such discomfort when in the presence of the disfigured accident victim that they may begin to avoid that person’s company. In either case, the car accident victim has suffered a real and compensable loss of the ability to be with others due to disfigurement and scarring.
Lasting Emotional Damage
A severe car accident can affect its victims in a wide range of emotional injuries. The victim may become so nervous or terrified of repeating the experience that travel of any sort becomes virtually impossible; even leaving the house may become difficult.
Paralyzing fright may become an obstacle to the victim’s enjoyment of life in any meaningful way. Or a traumatic brain injury or another injury from the accident may leave the victim with irresolvable and unremitting anger or depression. Disfigurement may leave the victim with permanent, debilitating embarrassment or mortification. Even the feelings of indignity resulting from changes to the victim’s person, and the reaction of others to it, can be compensable.
As with war victims, those injured in auto accidents can have devastating post-traumatic shock or stress disorder arising out of the incident. Flashbacks, emotional instability, and the avoidance of triggers can make life very hard for these individuals. Compensatory non-economic damages are likely to be recoverable. A related claim for damages is that the accident or some situation related to it lasted long enough or was so traumatizing that it can be considered an ordeal. This shock, too, is compensable.
Grief can result from an accident in which a victim suffers a profound loss. That grief may be triggered by the loss of a loved one in the accident or by losing some enormously significant part of the victim’s life. In either case, such grief can incapacitate those who suffer from it, and damages may be available.
Damage To Reputation
If another party to the accident makes comments that put your personal or professional reputation at risk, you may be able to seek damages for that damage as well.
The Other Kind Of Damages—Punitive
One other kind of damage doesn’t fall under either economic/special or non-economic/general damages. Those damages are punitive or exemplary damages.
Punitive or exemplary damages do not compensate the victim of an accident. On the contrary, they punish the at-fault party in the accident. You may benefit from punitive damages, but they do not compensate you. Indeed, some or most of the punitive award will go to the state rather than the victim in some states. Punitive damages usually arise out of extraordinarily reckless or intentional conduct by the at-fault party.
Punitive damages may come from:
- The seriousness of the misconduct – was the defendant reckless, or did the defendant act with malice or intent.
- The wealth of the party – punitive damages are supposed to hurt.
- The nature of the victim’s injury – is it life-altering?
- The relationship between the amount of the punitive and actual damages – some courts will instruct the jury to consider the actual damages in calculating punitive damages.
Punitive damage awards can be huge, though some states now cap them, and in others, a judge may order them reduced. The U.S. Supreme Court has ruled that generally, they should not exceed ten times the actual damages. Nonetheless, they can still represent very significant amounts of money. Further, if the at-fault party’s conduct was sufficiently outrageous or egregious, it may still be possible to exceed that 10:1 ratio.
Work With An Experienced Car Accident Lawyer
As an accident victim, you’ve suffered trauma and physical, emotional, and economic damages. The best thing you can do at this point is to work with the best professionals you can find. Get the best doctors, therapists, and rehabilitation experts in your area.
The day you have survived a terrible accident is not the time for non-traditional medicine or pro se legal work. If your case and injuries are complex, you need professionals who can properly handle that complexity.