How Are Pain and Suffering Damages Calculated?

If you have a personal injury claim against someone, you likely qualify for both economic and non-economic damages. “Pain and suffering” is a non-economic damage. In many cases, pain and suffering damages add up to well over half of the total value of a personal injury claim.

What Is “Pain and Suffering”?

The term “pain and suffering” refers to the physical discomfort you feel due to your injuries. It includes psychological problems you experience due to your injuries or accident.

It might include:

• Discomfort
• Mental anguish
• Emotional distress
• Trauma
• PTSD
• Insomnia
• Depression
• Grief
• Anxiety

Usually, you must suffer a physical injury before you qualify to recover compensation for accompanying psychological trauma.

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Negotiation Versus Trial

Your leverage at the settlement table will depend on the willingness of the opposing party to reach a settlement. This willingness will, in turn, depend (at least partially) on how much the opposing party believes you can win at trial.

You can expect the offer/counter-offer phase to go on for a while. You might run into an at-fault party who grossly underestimates how much pain and suffering damages a court would award you. You might even have to take a particularly stubborn party to trial.

The Per Diem Method

The per diem method is conceptually simple. Set a dollar amount for each day you suffered, and multiply that amount by the number of days you suffered. However, agreeing with the opposing party on a dollar amount per day is likely to be contentious.

The Multiplier Method

The multiplier method is an alternative to the per diem method. In the multiplier method, you select a multiplier between one and five. Multiply that number by your total economic damages to arrive at a total for your pain and suffering damages. The point of contention here will be the value of the multiplier.

Factors That Can Help You Value Your Pain and Suffering Damages

The following factors can help you place a value on your multiplier or per diem figure:

• The type of injuries you suffered: Some injuries hurt more than others.
• The severity of your injuries: The most severe injury is not always the most painful injury, but a severe injury can get a jury’s attention.
• Whether your injury left you with a permanent disability or disfigurement
• Whether you underwent surgery, rehabilitation, or therapy
• Any life activities you can no longer perform because of your injury: The more active you were before your injury, the more this factor will matter.
• How long it will take you to recover, if ever
• Whether you share responsibility for causing your injury: In a worst-case scenario, you might lose all of your damages this way.

Because of the inherent ambiguity involved in a pain and suffering claim, different juries may see the same injury in different ways. You can exploit this unpredictability at the settlement table.

How Do You Prove Pain and Suffering?

How do you prove the magnitude of damages as abstract as pain and suffering? After all, nobody can enter your mind and feel your suffering. You have to find a way to demonstrate it using admissible evidence.

A skilled personal injury lawyer can make a big difference here. Remember that the standard of proof in a civil trial is “by a preponderance of the evidence,” which is a “more likely than not” standard.

Following is a list of the types of evidence you can use to support your pain and suffering claim:

• Your own testimony
• The testimony of witnesses, including family, friends, and coworkers
• References to pain in your medical records: Be sure to complain to your doctors when you suffer so that they will refer to it in your medical records.
• Medical expert testimony on the degree and duration of pain your injuries typically cause
• A “pain journal”: You should keep a daily journal where you record your pain and how your injuries have affected your life.

Knowledgeable, neutral third parties, such as medical professionals, will likely make the most persuasive witnesses.

Limitations on Pain and Suffering Damages in Texas

Texas law places limits on claiming damages for pain and suffering for certain claims, as detailed below.

Workers’ Compensation Claims

You cannot claim pain and suffering damages in a workers’ compensation claim for benefits. Your claim is typically limited to medical expenses and a portion of your lost earnings.

That doesn’t mean you cannot claim pain and suffering for work injuries if you can file a personal injury claim. If your employer doesn’t have workers’ compensation insurance or there’s another liable third party, you can file a lawsuit against them and seek the full extent of your losses.

Medical Malpractice Claims

Texas caps non-economic damages in medical malpractice claims at $250,000 in cases against a single physician or healthcare institution and $500,000 in cases with more than one defendant.

Claims Against the Government

Texas also limits the amount of non-economic damages you can claim against the state government, a city, or an emergency service organization (the police, for example). The cap against the state government is $250,000 per person, and $500,000 per incident, no matter how many defendants there are. The maximum amount for local government entities is $100,000 per person and $300,000 per incident.

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Contact an Austin Personal Injury Lawyer for Help Calculating Your Pain and Suffering Damages

Personal injury lawyers generally don’t charge for initial consultations. If you select an experienced lawyer, they will be able to give you an estimate of the value of your pain and suffering claim after asking you a few questions. Since you are under no obligation to hire the lawyer after a free initial consultation, you have nothing to lose but a few minutes of your time, contact our FVF Law personal injury attorneys at (512) 982-9328.