Pain and Suffering explained as it relates to a car accident or negligence claim in Maryland
The phrase pain and suffering is used regularly and in the legal sense it usually applies to the ailments an injured individual endured because of the negligence of another. There are a few circumstances in a wrongful injury case when pain and suffering may not be of any significant importance In large part an injury is necessary for a negligence case to have settlement value in excess of just property damages. There are a number of ways a person injured by another can prove they have experienced pain and suffering as a result of negligence. There are a number of considerations that may not be considered or are irrelevant when determining value of pain and suffering and a settlement. There are a number of evidentiary factors that may help boost the value of any given negligence case. Most common, pain and suffering as it applies in car accident cases.
What exactly is pain and suffering- Damages
In a injury case or negligence lawsuit pain and suffering is usually necessary to substantiate and claim for damages. Regularly people are affected by the negligence of another and experience inconvenience, frustration, and aggravation. For the purposes of a lawsuit these complaints matter little when attempting to prove pain and suffering. The pain and suffering aspect of a lawsuit falls under the broad element of damages. In other words, the pain and suffering endured in a car accident case is only part of the total damages a person may seek.
In any case damages are the complete set of financial, physical (pain and suffering), and emotional affects (pain and suffering) the negligent actor has caused the victim. Emotional affects a victim endured will not be discussed in this post. Financial affects are the property, lost wages, and out of pocket expenses the injured had to deal with while recovering from the accident. This would include damage to an automobile that was involved in a car accident, or any property that was damaged as a result of the negligence. Total damages directly affect the settlement value of a claim. Increased settlement value exists if the victim endured pain and suffering as a result of the car accident.
Without pain and suffering the victim will simply be reimbursed for the out of pocket expenses and property damage. Of further note, victims often are left at a loss even when reimbursed for property damage. The scenario arises when, at the time of the accident, the victim owed more on the property than the actual property was worth. This is often the case when a person finances an automobile and ends up having negative equity in the car. (to prevent this see a write up on Gap Insurance.) Another scenario leaving the victim at a loss even when they are reimbursed for their property damage is when they were involved in a collision and their cherished, almost antique car was totaled. “My 1999 Honda civic had a lot of non-economic value, personal value, however when quantified for settlement purposes the value was less than $1,000. Now I have to make monthly payments on a car.” The sentimental value of a vehicle or belonging often far outweigh the economic value.
Does pain and suffering matter in my case?
In almost every negligence case pain and suffering will matter and will increase any compensation that is obtained. Most often pain and suffering claims are seen in car accident cases but it also applies in general negligent claims. There are however a few scenarios where pain and suffering endured by the injured does not matter at all, or matters very little. In Maryland Workers Compensation claims the pain and suffering an injured worker endures as the result of an other’s negligence does not matter. For further reading see this post discussing damages in workers compensation.
How do you prove pain and suffering in a car accident case or other negligence case ?
A victim can prove that they were injured by seeking and obtaining medical treatment. It is falsely understood by some that in order to get a settlement including injury money they must go to the hospital for treatment the same day of the accident. This is not true for a number of reasons. Insurance companies are increasing looking at immediate hospital visits with skepticism because for so long victims have been rushing to the hospital because they thought they were suppose to in order to show pain and suffering in a car accident. Rushing to the hospital right after an accident simply to prove you are injured is not necessary. It is certainly important to get medical attention as soon as possible if someone is injured however this can be in the form of seeing a primary care physician or visiting a clinic. (Please note that many injuries do require immediate hospital care and the decision to seek treatment should be discussed with a doctor or medically trained staff.)
The medical treatment obtained will be reported in medical records which will at sometime in the negligence case be used as evidence to support the claim of pain and suffering. Doctors, nurses, and therapists routinely record the aches, pain, sensations, and loss of use of injured body parts so it is relatively easy to show a person was indeed injured as a result of the accident. The true question becomes how injured were they?
Another way to prove pain and suffering in a car accident case is by documenting the experience from beginning to end through the use of a pain journal. Truly heart felt entries in a journal can be quite effective in proving pain and suffering in a car accident case.
One very useful and effective method for proving pain and suffering and the extent thereof is by taking pictures of any bruising, surgery scars or marks, and post operation pictures.
How does one determine the value of pain and suffering?
How to determine settlement value and the extent to which pain and suffering contributes to it is one of the most common questions asked by injured clients. Regrettably this is often one of the most difficult questions to accurately and precisely answer. This is because there are a number of factors that can affect any given case value.
Regularly there are online calculators and calculation methods that are used to determine the value of a case however the results provide less than adequate estimation. The accuracy must be questioned because there are numerous intricacies to each and every case that can be use to boost the value of settlement and the value of pain and suffering.
The most common explained method of determining pain and suffering value is the multiplier method. The multiplier method takes the victims lost wages and medical bills and multiplies that by a specific number. Ordinarily 3 or 4. The second method involves coming up with a per day pain number or cost per day for the duration of the medical treatment, and, if permanent injury resulted from the accident a pain number for the remainder of the individuals life. Pain numbers vary according the severity and complexity of the injury as well as documented pain levels in the medical records. This particular method can be very laborious so an average pain number may best be used to determine a pain and suffering value.
These methods of calculation are used only as a guide and there are many other considerations when determining pain and suffering and settlement value. An experienced personal injury attorney may be able to quickly identify issues that will significantly change the expected settlement. Some of which include the jurisdiction where the accident occurred, the facts of the accident, and the victims of the accident. For further reading on factors that affect auto accident settlements go here.
Does the inconvenience the victim had to deal with impact pain and suffering?
Yes and no. Arguing inconvenience is not necessarily a productive and effective way of arguing for more money while negotiating a settlement however it can at least be briefly discussed with the insurance adjuster. The ultimate goal is to paint a picture to the adjuster that reflects the way the case would be presented to a jury. Most likely a jury would at least consider any inconvenience endured as a result of the others negligence and may even increase any verdict amount.
Unfortunately there is no hard and fast rule that entitles the injured to increased pain and suffering because of the inconveniences they have had to endure. This can be quite an upsetting fact. Inconvenient facts of an accident often include having to take off work for medical treatment, using public transportation until a replacement car can be provided, driving back and forth to medical appointments, not being able to dress particular clothing, receiving medical bills in the mail, getting over the principal value of the damaged property and more.
Is pain and suffering the only factor when determining settlement value?
Pain and suffering is not the only consideration when determining the settlement value of a case but is important to consider when the effort is to maximize settlement. A qualified personal injury attorney will be able to argue for an increased settlement based on any number of factors including:
- Necessity of future treatment– if the injury is one of a permanent nature than there could very well be a possibility that future treatment will be needed. If this is the case than any settlement negotiations may include the likelihood of future treatment. Most often simply arguing this is not enough and a Independent Medical Examination may be needed.
- Arguing by using the details of the accident. This is right in line with trying to appeal to emotions of the adjuster. Not because you want the adjuster to feel bad, but you want the insurance adjuster to see how a potential jury may get emotional. Sometimes using details of the accident can do more harm than good. For instance, the typical rear-end case that provokes little empathy should not be be argued on the details. However, detailing rear end case that involved the trunk be crushed through the back seat and almost to the driver and passenger seats may be useful in negotiations.
- One of the most effective ways to obtain a good settlement is by showing the amount of treatment obtained by the victim. Similar to detailing the facts of an accident, arguing for a higher settlement based on medical treatment should only be done when there was significant medical treatment. Going through physical therapy for 5 sessions and then stopping treatment completely is not an impressive course of treatment and attempting to argue otherwise will be of little benefit. However, for the person who was severely injured in a car accident, underwent injections, diagnostic tests, surgery, pain management, and extensive physical therapy, arguing based on amount of medical treatment obtained is a must. The treatment should be highlighted and detailed at any opportunity.
The more treatment I get the higher settlement money will be, right?
Not necessarily. You may be thinking “Treatment is provided to patients if they are dealing with pain and physical complaints so as long as I complain and keep getting treatment my case will have higher value.” This is incorrect. Physical therapy should only last as long as the patient is benefiting from it. If no benefit it will likely end. Further, many physicians go by guidelines when prescribing therapies so they may only be willing to provide a certain number of sessions before discharge, or diagnostics must be done.
Once diagnostics are performed the value of a case can substantially increase, decrease, or stay the same. If there is positive finding on an objective test the value of a case increases. Clear fractures revealed on an x-ray, herniated discs revealed on an MRI, nerve damage clearly exhibited on an EMG will all increase the value of a claim to some extent. However, if there are completely negative x-rays, CT’s, MRI’s, or Nerve tests than it may look as though the injuries are not significant. In turn they may also reduce the value of any given claim.
The amount of treatment the victim obtains should be closely monitored by the physicians and the attorneys. Over exaggerated pain which leads to high treatment bills can have a devastating affect on settlement because the medical bills will be paid using the settlement monies. Even if the settlement amount is fair extensive unnecessary medical treatment can reduce the victims net recovery substantially. In the alternative, a lack of medical treatment can be equally devastating to any net settlement amount a victim recovers. To prove a serious injury medical treatment is necessary. So the tough guy that chooses to avoid physical therapy, or prolong the visit to the doctors will ultimately lose big when it comes to settling the case. Similarly, the person who is too busy to attend therapy will also lose when it comes time to settle.
Pain and suffering has a great impact on any personal injury settlement. While there are many types of personal injury cases almost all require pain and suffering to obtain a settlement. To maximize any settlement pain and suffering must be properly proven through the necessary evidence. Medical records are one source of necessary proof of injury. Property damage to cars involved in collisions usually reflect the amount of treatment expected. Because there is no magical calculator to determine a fair settlement amount auto cases should be handled by qualified attorneys that are able to use their experience to maximize each and every settlement based on the particular facts of the case.
Interested in how pain and suffering affects a workers compensation claim?