How to Get Pain and Suffering Damages After a Car Accident

Snapshot

Pain and suffering is a legal term describing the physical and emotional injuries suffered in an accident. It can be hard to quantify pain and suffering but the damages are often no less real than medical bills and body shop estimates.

Some car accident damages are easily calculated through medical bills, body shop estimates, and even pay stubs when a serious accident results in loss of income.

The concept of pain and suffering following a car accident is far more open to interpretation.

Pain and suffering has become a colloquialism that’s widely recognized but frequently misunderstood in its application to accident claims.

While insurance companies – and sometimes judges and juries – struggle to apply a monetary value to pain and suffering, the injuries and damages involved in such a claim are no less real than the ones supported by the cost of medical tests or surgery in the hours after an accident.

“Victims’ pain and suffering are primarily measured by defining the negative effects one’s car accident-inflicted physical injuries have caused on his/her life,” David Clark, a partner at the Clark Law Office in Lansing, Michigan, said. “As they are compensatory damages, keeping a journal that tracks the extensive pain and suffering you’ve experienced can substantiate your claims for an injury settlement.”

What Is Considered Pain and Suffering in a Car Accident?

“Pain and suffering” is a legal term designed to address the physical and emotional injuries suffered by a victim in a car accident.

Injuries that cause months of rehab or emotional stress that may involve loss of income, or just an inability to do the things that were a big part of a person’s life before an accident, can sometimes be difficult to quantify.

“Pain and suffering in the field of insurance, can be determined based on the level of injury – which can be physical or emotional like a shock sustained from an accident,” Emma Gordon, an insurance claims expert and owner of USSalvage Yards, said.  “It can also be determined through the change in the state of mind of the victim as a result of the accident.”

Physical Pain and Suffering

There’s no slam-dunk list of physical injuries suffered in an accident that automatically qualify you for a pain and suffering settlement. But there are legitimate injuries often associated with the kind of chronic pain that can last weeks, months, even years. Some are traumatic.

  • Back pain
  • Neck pain
  • Broken bones
  • Traumatic brain injury
  • Paralysis
  • Nerve damage
  • Damage to internal organs

Emotional Pain and Suffering

Not every accident-related injury can be measured or documented by an X-ray or MRI. Some can’t even be easily described by the person suffering either physical or emotional distress following an accident.

Mental anguish, for instance, is common especially when loss of income, or sleep or cognitive change is a major element of the post-accident fallout. Emotional pain and suffering can be any of the following:

  • Psychological trauma
  • Insomnia
  • Fear
  • Grief
  • Quality of Life diminishment
  • Changes in cognitive performance

Keeping a journal of your injuries and emotional challenges following an accident is a good way to support a pain and suffering claim.

“To help your lawyer build a good case for you, start taking notes of your experience during the whole medical ordeal as soon as you can,” Clark said. “Writing down your pain levels and what the doctors say about your condition can help you supply more evidence to your case.”

Who Pays for Pain and Suffering in a Car Accident?

Car insurance policies will pay for pain and suffering damages in an accident case, typically implementing the bodily injury liability portion of the policy.

The limits of the car insurance policy, though, can expose the at-fault driver to personal expense beyond the policy’s cap while limiting the victim’s ability to receive enough compensation to cover lost wages, medical expenses and pain and suffering.

Since insurance companies are businesses looking to minimize their losses, getting a payout for pain and suffering might be more complicated than filing a simple accident claim.

“Many insurance companies would attempt to leverage a victim’s financial and medical stress to settle the car accident claim with as little time and money as possible,” Clark said. “Complainants, however, mustn’t succumb to the insurers’ cliches of “Let’s settle this quickly so you can put this all behind you.”

“This is because fast settlements are usually incomplete settlements. Doing so revokes one’s right to reopen the case and ask for more settlement, even if they later found that injuries are more serious, recovery will take longer, or costs are more than first expected. The rule of thumb is to allow time to determine the full extent of your circumstance before you file your claim.”

How to Get Pain and Suffering from a Car Accident

Whether you file a claim yourself or hire an experienced accident attorney, the success of your claim likely hinges on how well you’ve documented your case. Keep your medical records, photographs of damage, prescription costs and a paper trail of missed workdays, doctor’s visits, etc. handy.

Nothing says you can’t collect all that yourself, but an accident attorney better knows how to navigate the choppy waters that arise when insurance companies contest claims of pain and suffering.

“Pain and suffering claims can fail when there is not enough evidence to back the claim when it is discovered that the accident is self-inflicted or caused by the victim’s carelessness,” said Emma Gordon, an insurance expert and founder of USSalvage Yards.

Michael Ryan, a retired financial planner, goes straight to the point: “Unfortunately, the most honest answer would be a really, really good lawyer is what usually makes the difference in a successful claim vs a failed claim,” he said.

“Generally speaking, successful pain and suffering claims are those that can demonstrate a clear link between the injury suffered and the pain and suffering experienced. This may be through medical evidence, eyewitness testimony, or other types of proof.”

How Much Is Pain and Suffering for a Car Accident Worth?

This depends on the severity of injuries, whether the victim shared any blame for the accident and/or how well the victim or his/her lawyer documents the claim.

Insurance companies typically use two methods of compensation: the multiplier method and the per diem method.

The multiplier method adds up the measurable damages you’ve suffered and multiplies that by a number – usually between 1.5 and 5 – to calculate pain and suffering.  In a serious accident that caused traumatic injury, the multiplier would be a high-range number, possibly four or five.

The per-diem method assigns a dollar value for a single day of damages (often based on a day’s income), then multiplies that by the number of days injuries have affected the claimant (and can be expected to affect them in the future.)

» More About: How Car Accident Settlements Are Calculated

David Reischer, an accident attorney and CEO of LegalAdvice.com talked about the factors that can be taken into consideration to decide what type of multiplier should be used.

  • The impact of the injuries on the claimant’s day to day life
  • The fault of the car accident
  • The severity of the claimant’s injuries,”

“A ‘pain and suffering’ claim is likely to be more successful when the claim can substantiate the actual damages with underlying evidence,” Reischer said.

Two more pieces of advice point to the good reasons why pain and suffering claims are often best left to experienced hands.

“There are a number of factors that can influence the outcome of a pain and suffering claim, including the state in which the accident occurred, the insurance company’s liability limits, and the severity of the victim’s injuries,” said James Holland, founder of Life Part 2, who says two major car accidents in his life “shook my soul.”

“It is important to speak to an attorney who can help you understand the specific laws and regulations that apply to your case.”

Melanie Musson, of CarInsuranceComparison.com, adds a warning regarding the claims process.

“If you’re involved in an accident that results in long-term issues preventing your life from returning to normal, you need an attorney to help you ensure you’re compensated for your pain and suffering like you should be,” she said.

“Be honest. If you fake the severity of the impact on your life, you’re committing insurance fraud. At the same time, don’t gloss over how the crash has changed your life. Being completely honest and working with an attorney will help you get a fair settlement.”

Robert Shaw

Robert Shaw is a writer based in Ohio who brings decades of newspaper experience as a reporter, columnist and editor to his freelance work. Shaw has written on topics as diverse as the city of Atlanta's successful bid to secure the 1996 Summer Olympic Games, to the educational challenges faced by an urban Cleveland school during the Covid-19 pandemic, to federal home buying loan programs designed to help teachers, firefighters, police and emergency personnel get a foothold in the housing market. Whatever the topic, Shaw strives to bring a sharp focus and clear understanding to the issues affecting people's everyday lives.

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Sources:

  1. Dimopoulos, S. (2022, March 1) What Is The Value Of My Personal Injury Case? Retrieved from https://www.forbes.com/sites/dimopoulos-injury-law/2022/03/01/what-is-the-value-of-my-personal-injury-case/?sh=16eb23774561
  2. N.A. (2020, November 21) Do Insurance Companies Pay for Pain & Suffering? Retrieved from https://gladsteinlawfirm.com/blog/do-insurance-companies-pay-for-pain-and-suffering/
  3. N.A. (ND) How Is Pain and Suffering Calculated in a Car Accident? Retrieved from https://bencrump.com/car-accident-lawyer/how-is-pain-and-suffering-calculated-in-a-car-accident-case/