If you have been hurt by someone else’s negligence – whether in a car accident, truck accident, slip and fall, or any other personal injury case including products liability or medical malpractice – and can prove they were at fault, you can pursue monetary damages from that person or company or their insurance carrier.
Many personal injury attorneys spend their time focused on proving the other party is to blame for the injuries and liable for damages. Proving liability is important in a personal injury case. But equal time should be spent on showing the full extent of the accident victim’s damages.
Virginia law allows an injured person to ask for several types of damages, including:
These elements of damages are broken down into two categories: economic damages and non-economic damages.
Economic damages are those damages that can be calculated with some certainty – medical bills, lost wages, and future medical expenses and lost wages. Insurance carriers and jurors can understand these numbers easily.
Non-economic damages, also called pain and suffering damages, are harder to explain.
Virginia courts understand this. And have stated that there is no exact method to measure and value in monetary terms the degree of pain and anguish of a person suffering because of injuries caused by another’s negligence. They have also stated that there is no fixed rule to measure the amount of damages for bodily disfigurement in personal injury cases.
Because the range of damages allowed for pain and suffering varies widely, it’s important that you and your attorney present pain and damages at trial in a manner that the judge or jury can understand and agree with.
The purpose of this article is to discuss pain and suffering damages, how these damages are calculated by insurance companies and juries, and how to present your pain and suffering damages to maximize your financial recovery.
For more information, read my article on how personal injury settlements are calculated. Or call me for a free consultation if you want to speak with a top-rated car accident lawyer: 804-251-1620 or 757-810-5614.
The term “pain and suffering” is a noun. It is defined as:
the physical and mental distress caused by an injury, including physical damage to the body like broken bones, torn ligaments, a fractured skull, and herniated discs, but also the aches, temporary and permanent restrictions on activity, potential shortening of life, and mental anguish like depression, anxiety, and embarrassment from burning, scarring, disfigurement, or diminished abilities. Pain and suffering is a category of general damages. These general damages are paid by the person whose negligence or intentional harm caused the physical injuries. The dollar value of damages for pain and suffering is subjective. It is usually based on the amount of medical bills to date, future medical costs, lost wages, and lost earning capacity, all of which can be calculated. These general damages that can be calculated are called “special damages.”
The goal of any personal injury settlement or trial is to get enough money to make you whole. And as an accident victim the only way you can be made whole is by receiving compensation not only for economic damages, such as lost wages, medical bills, and future medical expenses, but also for pain and suffering.
In Virginia you can ask the jury to allow monetary damages for past and future physical pain, past and future mental anguish, any disfigurement or deformity and associated humiliation or embarrassment, past and future inconvenience, and loss of capacity to enjoy life and social relationships.
Just as pain and suffering damages are one type of the damages available in tort claims, the things above are types of pain and suffering damages. Combined, these pain and suffering damages are meant to make you whole for what you’ve lost and had to go through because of the accident. The payment of medical bills and lost wages is nice and necessary, but that alone doesn’t make up for how someone else’s negligence changed your life. Pain and suffering damages, however, do.
Whether you’re handling the motor vehicle accident claim on your own or working with an attorney to protect your rights, you’ll probably hear the terms general damages and special damages during discussions about the case and with the insurance adjuster.
It’s important that you understand the difference between general damages and special damages because many insurance companies use the amount of special damages to calculate pain and suffering damages.
Special damages are economic losses you can quantify and calculate easily. They include: medical expenses; lost wages; property damage; household expenses; loss of earning capacity; cost of home modifications; costs of home health care; future medical costs; costs associated with having to cancel trips or get day care for children; and, out-of-pocket expenses for transportation, prescription medication, and health care.
When the jury allows an award of special damages it is providing compensation for expenses you have incurred or will incur and for money lost because of the accident and injuries.
General damages are those damages that are difficult to calculate. They include damages for pain and suffering, emotional stress, and loss of consortium. These are intangible damages with no specific answer.
In Virginia the fact finder decides how much your physical pain and suffering is worth. And what amount of money will compensate you for that pain and suffering.
In most personal injury cases the jury is the fact finder, meaning the members of the jury will decide what amount to allow for your pain and suffering damages.
The trial may not set aside the amount of damages awarded for pain and suffering unless the defendants can show that the award was based on prejudice, corruption, or a mistaken view of the case. As stated by the Supreme Court of Virginia, a trial court must set aside a verdict:
if the amount awarded is so great as to shock the conscience of the court and to create the impression that the jury has been motivated by passion, corruption, or prejudice, or has misconceived or misconstrued the facts or the law, or if the award is so out of proportion to the injuries suffered as to suggest that it is not the product of a fair and impartial decision.
If the trial court decides that a verdict is excessive, the judge can require the accident victim to accept a lower amount of damages or to submit to a new trial. This is known as remittitur.
The insurance company will likely pay you some amount for pain and suffering damages if it is undisputed that the other party was at fault.
Insurance carriers realize that suffering an injury is inconvenient and will result in some physical pain and mental anguish. But they often disagree with the amount of physical pain and suffering you are claiming.
The insurance company will likely consider the following factors in deciding the amount of its initial settlement offer:
In my experience every accident victim has some amount of general damages. Any injury, no matter how minor, causes stress and inconvenience. The time you have to spend getting medical treatment and reporting the accident to the insurance company is time you’ll never get back. And you deserve compensation for it.
Determining pain and suffering damages is not an exact science. There is a lot of room for disagreement between the insurance carrier and the accident victim. But an experienced attorney can help maximize your pain and suffering settlement.
When negotiating a settlement for a car accident or other type of personal injury claim you must decide what is a reasonable amount of money to resolve your claim.
Many personal injury attorneys and insurance companies use a formula to determine the claim’s value. The formula varies from attorney to attorney and insurance company to insurance company.
There are, however, some common methods used to estimate the value of pain and suffering damages in personal injury litigation. The two most common methods are: (1) using a multiplier of special damages and (2) using a per diem formula. I recommend evaluating both ways of calculating pain and suffering before starting car accident settlement negotiations.
The most common approach used by insurance carriers and attorneys to determine pain and suffering is the multiplier approach.
Under this approach you add up your special damages. These include your past and future medical bills, property damages, and lost wages.
Then you multiply your special damages by a number. Usually the number is anywhere between 1.5 and 10.
The appropriate multiplier depends on other factors in your case. Other factors include the insurance carrier involved, the adjuster, the location of your accident, what court and venue has jurisdiction over your case, your attorney’s reputation, your likeability, the defendant’s likeability, the seriousness of your injuries, the likelihood that you will make a complete recovery, and how the injuries affect your ability to complete activities of daily living.
Usually the insurance company and accident victim will disagree on the correct multiplier of special damages. An experienced personal injury attorney can advise you on the appropriate multiplier of special damages in your car crash case.
Example:
Alex hurts his knee in a motor vehicle accident that was Bob’s fault. Bob’s insurance carrier agrees that Bob is responsible, but there is a dispute over the value of pain and suffering damages.
Alex makes $52,000 per year and missed three weeks of work because of his injuries. He also required an overnight stay at the hospital, an MRI, two follow up appointments with an orthopedist, and 10 sessions of physical therapy. His medical bills are $7500.
Alex’s special damages total $10,500. Under the multiplier approach Alex may decide to ask for a settlement in the range of $15,000 to $42,000.
Another method to calculate pain and suffering in a car accident or personal injury case is the daily rate method, also called the per diem method.
Under this method the desired monetary recovery for pain and suffering is represented by a certain dollar amount for each day you have to live with pain. The dollar amount is multiplied by the number of days from your injury to trial, or from your injury to some date in the future, which may be your life expectancy.
The difficulty of this approach is calculating and justifying the daily rate you use for pain and suffering. Later in this article I discuss different ways to prove pain and suffering.
Insurance carriers and defense attorney don’t like the “per diem” approach to pain and suffering, especially in cases involving catastrophic injuries resulting in permanent disability and pain. This is because the per diem approach may lead to a number well above historical jury verdicts for your type of case.
Example:
Sarah suffers a concussion with Mike, a drunk driver, strikes her vehicle. Sarah is out of work for one year.
Though she returns to work Sarah continues to experience pain, dizziness, and depression from post-concussive syndrome for three years after the accident. Eventually her symptoms resolve and she is back to living a normal life.
If Sarah decides to use the per diem approach to calculate her pain and suffering damages, she must determine the appropriate daily rate and multiply it by 1,095 days (three years).
In Virginia per diem arguments that present mathematical formulas for calculating pain and suffering damages are not allowed. The Supreme Court of Virginia has stated that the use of a:
“mathematical formula setting forth on a blackboard the claim of pain, suffering, mental anguish, and the percentage of disability suggested by him on a per diem or other fixed basis, was speculation of counsel unsupported by evidence, amounting to his given testimony in his summation argument, and that it was improper and constituted error.”
But despite this prohibition, your attorney may present a mathematical equation asking for a fixed amount of money for each element of damages in a personal injury action.
Often the insurance carrier or its defense counsel will argue that you should not be entitled to damages for future pain, mental anguish, embarrassment, inconvenience, or loss of the enjoyment of life because doing so is speculative and the way you are presenting it violates the rules of evidence.
Virginia courts have rejected this defense to pain and suffering damages.
For example, the Supreme Court of Virginia has stated that a jury may infer future pain in some cases, especially when you have already suffered persistent pain for a lengthy period and continue to suffer pain or other symptoms at trial.
The court has said the same thing about past and future mental anguish. As stated in Kondaurov v. Kerdasha, 271 Va. 646: “We have held, for well over a century, that mental anguish may be inferred from bodily injury and that it is not necessary to prove it with specificity. Mental anguish, when fairly inferred from injuries sustained, is an element of damages.”
It has even said that if you prove an existing deformity or disfigurement, you do not need to provide specific testimony on how you have been humiliated or embarrassed to recover compensation for this type of pain and suffering damage.
These specific statements, combined with several court opinions holding that damages need not be proven with mathematical certainty, give you and your attorney the freedom to try many different approaches to proving pain and suffering damages.
For example, you could ask the jury to decide what amount of money it would take to live with the consequences of your injury. Personally there is no amount of money I would consider fair for having to live with post-concussion syndrome for the rest of your life or a spinal cord injury resulting in paralysis.
Here is another example.
Ask the jury how much money it would be willing to accept if it could no longer do the things it loves, such as playing basketball or catch with a child or going hiking with a wife or girlfriend.
The more effective you are in showing how the defendant’s negligence changed your life, the more you are likely to receive in a pain and suffering settlement.
There is no cap on pain and suffering damages in Virginia.
This means there is no limit on the amount of money you can receive for pain and suffering related to your auto accident or other type of injury.
Unless the driver who hit you is independently wealthy or a large business is liable for your injuries, the amount of damages you recover in your personal injury case is usually limited to the coverage limits of the insurance policy. No matter the extent of your injuries and pain and suffering.
This is best explained through an example involving a car wreck.
Most car insurance policies involve two types of coverage: bodily injury (BI) and uninsured/underinsured (UM) motorist coverage. They may also provide personal injury protection (PIP), called Medical Payments Coverage (MedPay) in Virginia, but that coverage is often limited.
You can collect pain and suffering damages under both BI and UM policies, but only up to the amount of the insurance policy limits.
Most bodily injury and UM coverages have two policy limits. For example, you may have seen an auto insurance policy that is $100,000/$300,000. The first number is the most amount of money the policy will pay to one accident victim. The second number is the total amount the insurance company will pay no matter how many accident victims there are. If there are multiple accident victims then you will want to file a lawsuit and start settlement negotiations sooner rather than later so that there is enough money available for your damages. .
If you are hurt in an accident and have $200,000 in medical bills, then you may not be able to recover any pain and suffering damages if the available insurance coverage is less than that amount. In this situation your attorney will try to negotiate the medical liens so that you can net more money.
It’s important that you consider the amount of insurance coverage available and whether there are sources from which to collect a pain and suffering settlement or verdict. A large award for pain and suffering damages does not help you if there is no insurance policy or other assets from which to recover the award.
One court has said “there is no measure by which the amount of pain and suffering endured by a particular human can be calculated.”
And many scientists and doctors agree.
Medical science is able to help us determine that pain resulting from personal injury exists. And the likelihood that pain will continue. But it is not as helpful in explaining the severity of pain and suffering resulting from an auto accident.
Some scientists and doctors also believe that a person’s perception of and reaction to pain is affected by their history, personality, and life experiences. In other words, every person’s pain response to personal injury is different. This makes every car accident and personal injury case unique.
It also makes it difficult for juries to determine how much pain and suffering is worth in a personal injury case. And it means that you and your attorney must spend as much time proving pain and suffering damages as you do proving liability in an auto accident case, if not more.
Showing the insurance adjuster or jury how an injury has caused pain and suffering that affects your life is your attorney’s most important job. And this is done through different types of evidence.
Below are different areas you should focus on to show your pain and suffering and increase the amount of damages allowed.
First, your attorney will help you gather the documentation necessary to prove special damages.
These documents include:
The type of injury you suffer has an important role in determining the amount of pain and suffering damages you receive.
A soft tissue injury, such as injury causing whiplash, bruising, sprains, strains, and minor cuts, is usually valued less than an accident causing broken bones, fractures, burns, traumatic brain injury, post-concussive syndrome, spinal cord injury, lumbar fusion, or herniated discs.
The more severe your injury, the greater the multiplier or per diem rate you should use when negotiating an insurance claim settlement or presenting your personal injury case at trial. Catastrophic injuries often result in more pain, suffering, mental anguish, and decreased quality of life than soft tissue injuries.
Medical literature and expert witness testimony from doctors can help show just how bad your injury was.
If you had limited pain and suffering because your injury resolved quickly and you required minimal treatment, then your pain and suffering settlement demand should be lower.
If, on the other hand, you have required extensive treatment over the course of months and are likely to need future medical treatment, you should make a much higher pain and suffering demand.
Showing how long you have experienced pain and suffering – and whether you will continue to have pain and suffering – is an important part of negotiating a higher multiplier of special damages or a longer period for using the per diem method calculation.
Also, the more you have to treat, the more inconvenience the injury caused.
Many attorneys focus on how auto accident injuries have held their client back. That is important, but a small part of using your testimony to get a fair amount of pain and suffering damages.
It is more effective to show all the hard work you have put into trying to recover. And the pain and agony that caused, just like a professional athlete or Olympian training. And the best way to do this is not only through testimony but also a day in the life video designed for litigation.
A day in the life video provides visual evidence of the obstacles you face completing normal activities of daily living because of your injuries. It can show how your injuries affect your ability to take care of yourself, drive, or even play with your children.
If the jury sees you trying to get better and struggling to overcome your injuries, and believes you, it is more likely to award you a fair amount for pain and suffering damages.
And if the court will not allow a day in the life video, you can testify regarding these same things and more.
If, for example, you’ve gone back to work but have noticed that your job performance is suffering because of problems related to the accident, tell the jury.
You want the jury to know that you are doing all you can to recover and that allowing pain and suffering damages will help you get back to normal sooner.
To recover a fair amount of pain and suffering damages, it’s not enough to simply say that you are hurting or depressed.
Your testimony should show how it has affected you in concrete terms.
For example, if you participated in social activities before the accident, such as basketball, bowling, dancing, going to the movies, going out to eat, playing cards, attending sports games, hunting, or fishing, but no longer do so because of your physical limitations or because you do not feel up to it mentally, talk about these changes in your life. And how your injuries have left you feeling more alone and even caused crying spells.
A jury member is more likely to understand what it feels like to no longer be able to do the things you enjoy, or to even go out and have fun, than he or she is to understand what you mean by “pain.” And insurance adjusters know this. The more detail you provide, the greater the likelihood you will recover pain and suffering damages.
Both orthopedic injuries and brain injuries can put you in danger.
For example, a broken leg or spinal cord injury may limit your mobility. Or even force you to use an assistive device such as a cane or walker. If so, you would have a difficult time walking across a street before the light turns green. Or helping your family members escape a burning house.
Knowing that you are unable to save yourself or others in these situations because of your physical injuries may cause mental anguish. It’s important for the jury to know how you feel so that it can compensate you for the peace of mind you have lost.
Pain from physical injuries, a brain injury, or side effects of the medication you take to treat your injuries may impact you mentally in another way. Each of these things can impair your concentration, ability to complete tasks and follow instructions, and memory.
For example, I have represented auto accident clients who were so drowsy from pain medication that they forgot to turn off the stove while cooking. This resulted in fear of doing even the simplest household chores without causing additional harm to themselves or others.
A jury is more likely to award pain and suffering damages if you offer proof that the defendant treated you poorly after the accident.
A defendant that refuses to accept responsibility for the accident, alleges that you caused the injuries and brought the damages on yourself, or hires expert witnesses who testify that you are faking the extent of your disability (malingering) may anger jurors.
And jurors who think the defendant is playing games with your life, health, and finances are more likely to compensate you fairly for pain and suffering after an auto accident.
Often it is helpful to present expert witness testimony regarding pain and suffering. Expert witness testimony is admissible to prove not only present pain and suffering but also the value of future pain and suffering, so long as the testimony is given to a reasonable degree of medical certainty.
Expert witness testimony helps prove pain and suffering damages in several ways:
I’ve also found it helpful when an orthopedist, neurosurgeon, primary care provider, psychiatrist, or psychologist testifies that he or she believes that my client’s pain complaints are genuine. These are health care professionals trained to decide if someone is telling the truth.
Did you volunteer before your car accident? Help friends or family members going through a difficult time? Assist the elderly? Coach your child’s sports team? Attend parent-teacher conferences?
If your injuries prevent you from doing these things then make sure the jury knows about it. The defendant’s negligence has taken away something from you. And from the community and others who relied on you and who benefited from their interactions with you.
You are allowed to testify at trial regarding pain and suffering. But I recommend preparing well before trial.
You should keep documentation of your recovery process following an accident caused by another’s negligence. This documentation includes pictures and videos of your recovery, including therapy sessions, and a daily log where you record your pain. The daily log should also state what activities you had difficulty doing that day because of your pain.
This journal, along with the photographs of your injuries and video of your therapy sessions, can help you explain to the judge and jury how the accident has affected your life.
I recommend having the following persons testify regarding their observations of you post-accident compared to how you were before the accident:
These are people who may spend a lot of time with you and are in the best position to testify about the physical pain and mental anguish you are enduring because of the motor vehicle wreck. They can also testify about the changes in your relationships because of pain, depression, and anxiety related to the accident.
If possible, use at least two non-family member witnesses. The jury is more likely to give greater weight to witnesses who are not related to you.
Insurance adjusters and some jury members may feel that even though you were badly hurt, you are asking for too much money because it is more money than any one person should have.
You can counter this argument by talking about how you would use the money.
For example, you may start a community organization that focuses on road safety. You may plan on promoting awareness about the dangers of texting and driving.
Or if you have already started a community organization you can have members of that organization testify about your efforts to create a safer place for all drivers, pedestrians, and bicyclist.
Doing this gives jurors a sense of purpose in helping you. And will encourage them to award more money for your pain and suffering.
Though some attorneys may disagree, I think you should tell the jury the amount of money you want awarded for the different elements of pain and suffering. In my experience jurors are looking for some guidance.
In Virginia you may tell the jury how much money you would like allowed for your general damages and special damages. You can even present a chart that breaks down the amount of money you would like awarded for each element of damages. A visual is helpful to the jury. I
If you or a loved one has been injured in an accident caused by someone else’s negligence, call me today: 804-251-1620 or 757-810-5614. Come see why Virginia Super Lawyers Magazine has voted me a Rising Star in the fields of personal injury, motor vehicle accident, and traumatic brain injury the past four years.
As your attorney I will investigate and develop your case fully so that we can come up with a strategy to show how the accident injuries have changed your life and caused pain and suffering daily. I’ve handled hundreds of pain and suffering claims and will use my experience to help make you whole through the personal injury claims process.
Call now for a free consultation: 804-251-1620 or 757-810-5614. I represent auto accident and defective product victims throughout the state, including those in Richmond, Northern Virginia, Hampton Roads, and Roanoke.