Jason Stephens | May 6, 2020 | Personal Injury
When another person’s negligence or wrongdoing causes your injuries, you may receive compensation from the party who caused the injury. The settlement for a personal injury claim might include compensation for financial losses and noneconomic damages. Noneconomic damages are commonly referred to as “pain and suffering” damages.
What are Pain and Suffering Damages?
Texas Civil Code §41.001 defines noneconomic damages in a personal injury case. According to the code section, noneconomic damages compensate an accident victim for:
- Physical pain and suffering;
- Emotional pain and suffering;
- Mental anguish;
- Loss of consortium;
- Physical impairment;
- Loss of society and companionship;
- Injury to reputation;
- Loss of enjoyment of life; and,
- All other nonpecuniary losses of any type other than exemplary damages.
Pecuniary losses are the economic damages sustained by the victim, such as medical expenses and loss of income. Exemplary damages are punitive in nature. Exemplary damages are intended to punish the defendant for gross negligence.
Unfortunately, there is not a pain and suffering calculator or equation you can use to determine the value of noneconomic damages in an injury case. An experienced personal injury lawyer can help you determine the value of your pain and suffering claim by reviewing the relevant factors and circumstances in your case.
Calculating Pain and Suffering Damages for an Injury Case
It is challenging to place a dollar amount on a person’s suffering after an accident. There is not a bill or invoice we can use to value noneconomic damages. Therefore, we need to use other methods for calculating pain and suffering damages.
Pain and suffering damages are subjective because each person suffers differently. Comparing your claim to another claim is not sufficient. You may suffer more with a broken leg than another person because your broken leg required surgery and physical therapy, whereas the other person’s broken leg was set and healed in a cast.
Additionally, some injuries may cause pain and suffering without requiring any treatment. For example, if you were in a car accident, you may experience all kinds of pain from mild back and neck injuries. Even if your injuries are too mild to require treatment, you could still experience a great deal of physical pain and miss out on important events and commitments because of them.
No two situations are the same and no two victims are the same. Each personal injury claim is viewed independently. However, factors that might be considered in each case to calculate pain and suffering damages include, but are not limited to:
- Number of physical injuries sustained in the accident;
- The severity and extent of each injury;
- The time it takes to heal and recover from the injuries;
- The required medical treatments, including the invasiveness of each treatment;
- Whether the person sustained a permanent disability or impairment;
- Whether ongoing medical care or personal care may be required and how long that care may be required;
- If the person sustained disfigurement or scarring;
- The extent the injuries impact a person’s life and activities; and,
- The age and overall health of the individual before the accident.
How can a Person Prove Pain and Suffering Damages?
Proving the extent of your suffering and pain after an accident can be difficult. However, there are things that you can do to improve your chance of recovering maximum compensation for noneconomic damages.
Keeping a pain and suffering journal is one way to document your damages. A journal allows you to keep detailed notes about your pain level each day and how your injuries impacted your life. Make sure to include notes about events that you miss, activities you cannot perform, and your emotional state each day.
Medical evidence and testimony from your physicians can also help document pain and suffering damages. Testimony from your family and friends describing your struggle to recover, your pain levels, and how your injuries disrupted your life can be helpful.
Medical experts may also testify regarding the severity of your injuries and how those injuries could impact pain levels. Finally, your testimony can be a powerful tool in conveying how you suffered because of an accident and injury. Do not exaggerate the details of your recovery, but be honest and forthcoming about how the accident impacted your life.
Your pain and suffering journal can help remind you of the difficulties you experienced as you recovered from your injuries.
Should I Settle my Claim or go to Court?
There is no guarantee the money you receive from a jury award will exceed the settlement offer from the insurance company. Insurance companies research jury awards in your area and consider that factor when calculating a settlement offer.
Your attorney can provide guidance about whether a settlement offer is fair or whether a jury trial might be the best option based on the factors in your case. Choosing to settle or proceed with a personal injury lawsuit is your decision. However, it is best to make that decision after receiving advice from a trusted legal advocate.