A very essential element in any personal injury accident claim is damages. As a claimant or plaintiff, you or your car accident attorney have the burden of proving liability, causation, and the amount of damages you are claiming by the standard of a preponderance of the evidence.
Damages are generally divided into 2 categories: special and general. Special damages are your economic losses such as wage loss and medical expenses and can be easily quantifiable. General damages include emotional distress and/or pain and suffering but are subjectively calculated. So, how do you calculate damages for pain and suffering in a Massachusetts injury claim?
What is Pain and Suffering?
On its face, pain and suffering conjures images of a person moaning and decrying the constant pain she is feeling from an injury. However, pain is subjective and people suffer differently even from similar injuries and can be emotional as well as physical. It is also not contingent on you suffering constant and significant pain at all times.
Insurance companies and juries evaluate pain and suffering on similar factors. In order for you to be compensated fairly and reasonably for your pain and suffering, you do need to provide credible testimony and documentation about what you have endured and how your injuries have adversely affected your quality of life. By law, you are entitled to an award for pain and suffering if you have met your burden of proof, and which can include past, present, and future suffering so long it is verified by reasonable medical probability.
To help quantify your pain and suffering, your car accident attorney will advise you regarding what you need to show how serious your pain is and why you are entitled to what you claiming. Factors in this analysis may include:
- Severity of the pain—burn injuries can be extremely painful for long periods of time and last for years. A broken leg can cause immediate distress but can be quickly alleviated through medication. For other injuries, you may suffer periods of intense pain that only strong pain medication such as opioids can remedy, and you run the risk of addiction.
- Length of time pain lasted—even a strained neck or back can last for months. Any injury that requires pain medication for long periods can result in a substantial award.
- Emotional distress—many car accidents cause emotional distress to victims such as loss of sleep, flashbacks, deep anxiety, fear of driving, and mood changes that can affect your social or marital life. Emotional distress can last for years. Testimony from a counselor, psychologist or psychiatrist is helpful in establishing its severity and duration and in some cases giving your condition a particular diagnosis such as PTSD, or post-traumatic stress disorder.
- Consequences of emotional pain—if you were severely disfigured or lost an eye or limb, you may suffer extreme psychological distress, humiliation, and embarrassment from being exposed in public and may avoid going to certain places or even socializing. Changes in how you see yourself or interact with the world are serious considerations in calculating these damages.
- Medical expenses and duration of treatment—the amount of your medical expenses and duration of your treatment can persuade an insurer or a jury that your suffering was substantial. Records of your treatment, medications, and testimony from your medical providers who directly observed you can establish a credible case of severe and lasting pain and suffering.
- Photographs and videos–Photographs or videos of your injuries taken immediately after the accident or while you are in a hospital bed with a cast or in bandages can highlight and support your claim of prolonged and severe pain.
- Testimony from friends, and family—statements from friends and family before trial or their testimony at trial can be very persuasive in demonstrating the extent of your suffering and how your injuries have adversely affected your life.
- Testimony from yourself–Some car accident attorneys ask their clients to keep a diary or log while they are treating and recovering to document their daily routines, what activities they have attempted and been unable to perform, sleep disturbances, the medications they are taking, their distress over a certain event that day that was related to their injury, and how their quality of life has been diminished. You will also have an opportunity to explain the nature and extent of your injuries and how your life has been affected if you are deposed by opposing counsel or interviewed by an insurance adjuster in the presence of your counsel.
Proof that you sustained a serious and emotionally devastating injury is not lost on a reasonable insurance adjuster or jury. Many jurors can draw on their own experiences or by having observed loved ones who suffered from severe injuries to deliver a substantial verdict against a negligent defendant.
Is there an Industry Standard?
Although there is no statutory, legal or industry standard for calculating damages for pain and suffering, some legal practitioners will use a multiplier such as 1.5 to 5 times the medical expenses to justify or demonstrate the amount claimed for pain and suffering. Others may use a daily sum such as $150.00 per day over a period during which the claimant suffered from her injuries to when the pain became much more manageable or was alleviated. In some cases, the pain will never go away.
In any event, you will need a highly experienced car accident attorney who knows how to adequately present your claim for pain and suffering before a claims adjuster, defense lawyer or jury. Otherwise, you may find that your award is deficient despite your real and verifiable claims of pain and suffering because your attorney failed to do what was necessary or lacked the experience in how to properly qualify, quantify, and substantiate your claim before an insurer or jury.
Retain the Car Accident Attorneys at Burns and Jain
Knowing that a car accident attorney from Burns and Jain is handling your claim will give you the peace of mind to know that it is being handled thoroughly and professionally. Backed by years of trial experience and in having negotiated substantial settlements, the lawyers at Burns and Jain will give you the best opportunity for a satisfactory resolution. Call us at (617) 227-7423 for a free consultation.