How are Pain and Suffering Calculated?
Michele Mirman | Personal Injury | March 14, 2020
Personal injury accidents can leave victims with life-long injuries. These can be both mental and physical. Those who are injured can ask the court or insurance companies to help compensate them for their pain, both currently and in the future.
These types of compensation are called pain and suffering. Generally, pain and suffering awards will be calculated by adding up the economic damages and multiplying them by a number between 1.5 and 5, depending on the severity of the injury.
Pain and Suffering Basics
Pain and suffering is a major part of personal injury cases. Before it can be calculated, you will first need to prove who was responsible for your injury by showing negligence. This is a failure by someone to act in a way that a reasonable person or someone similar in an identical situation would act. The person is in breach of a duty if they fail to act in this particular way.
You must also be able to show that you have an actual injury and that the injury was a direct or proximate cause of the responsible person’s actions or failure to act. Once negligence has been proven, calculations for compensation can be made to make sure you are reimbursed for things like medical expenses and loss of work. One thing that is also calculated at this stage is pain and suffering. There are two main types of this: physical and mental.
Physical pain and suffering is the actual pain the plaintiff is physically suffering. This pain and their injuries must have been directly caused by the accident. The pain is not limited to the injury at the accident and the suffering up to the lawsuit. It can also include future pain and suffering. This can include long-term care if the victim was seriously injured like through a doctor’s mistake during surgery.
Mental pain and suffering are the by-products of physical injury. This includes things like mental anguish, loss of enjoyment of life, fear, anxiety, depression, shock, and emotional distress. In very serious accidents, it may also result in the plaintiff having post-traumatic stress disorder (PTSD). Like physical pain and suffering, future mental anguish will also be looked at.
One of the first steps after an accident is to file a claim with the at-fault person’s insurance company. This is considered a third-party claim where you seek compensation for your losses, including both physical and mental pain and suffering. Insurance companies all have different ways of calculating this and there is no regulated rule on how they must compensate you.
It is important to have an attorney you trust working for you to advocate your rights with insurance companies. The goal of the company is to close your case quickly and give you as little money as possible. In contrast, your lawyer’s job is to seek the largest settlement they can and make sure all relevant facts are looked at closely.
In New York, insurance companies tend to use one of two methods to calculate pain and suffering. The first is the more common multiplier method. Economic damages are first calculated. This includes costs for current and future wages lost, medical bills, earning capacity, and property damage. This amount is then multiplied by a number between 1.5 and 5 to calculate your total compensation. More severe injuries get a higher multiplier.
The other method sometimes used is the per diem method. This approach assigns a dollar amount to each day that the plaintiff suffers from their injury. The date starts on the day of the accident and ends on the day they are fully healed but physically and mentally. Naturally, this process can take a long time and be difficult to calculate so it is not the preferred method.
New York Pain and Suffering
Many states limit the amount someone can be compensated for if they have physical or mental pain and suffering. The reason for these caps is that there is a fear that juries could be too sympathetic and award compensation that is grossly disproportionate to the injury suffered. Luckily, you will not have to worry about caps if you have a personal injury case in New York. Currently, there are no state laws that limit how much compensation a jury can award a plaintiff.
New York is a pure comparative fault state. This means that after hearing the evidence, the judge or hurry will set a percentage of fault for each person involved in the accident. This may also include the plaintiff. The state law only allows for compensation for up to the percent you were not responsible for the accident. For example, if you are the plaintiff and you are found to be 10% at fault, you can only recover up to 90% of your damages and pain and suffering requests.