Calculating Pain and Suffering after a Traffic Accident

If another driver’s negligence causes you to be injured in a traffic accident of any kind, an important element of your claim is the damages you have endured, and an important part of these damages is your pain and suffering.

While the pain and suffering associated with your traffic accident is less clear-cut than, say, property damage to your vehicle, obtaining just compensation for your suffering is likely critical to your ability to reach your most complete recovery, which makes carefully addressing your pain and suffering in your claim essential.

Your Traffic Accident Claim

Every traffic accident claim is unique. Since navigating your unique traffic accident claim can be complex, it is vital to understand common mistakes to avoid after an accident. One common mistake people in your situation make is failing to represent their pain and suffering in their claims accurately.

While assessing your medical expenses and lost earnings is a reasonably direct process, doing so for your pain and suffering is far more complicated. As such, the best way to obtain a clear picture of the pain and suffering involved in your traffic accident claim is by working closely with an experienced traffic accident attorney.

What Constitutes Pain and Suffering?

Personal injury claims allow claimants to seek compensation for their damages (or losses), and one category of loss is pain and suffering. This pain and suffering refers to the physical and emotional pain and suffering you endure as a result of being harmed by someone else’s negligence. Your pain and suffering can include all the following:

• The physical pain of your injuries
• The mental pain of coping with the violent accident and the difficult healing ahead
• The PTSD-like symptoms that accident victims often experience
• The emotional injuries you sustain

The trauma associated with serious car accidents can lead to any number of emotional consequences, including the following:

• Severe mood swings
• Increased anxiety, which can include anxiety attacks
• Bouts of depression
• Increased irritability and lashing out
• Emotional lability
• A tendency to self-isolate or push others away
• Fear of getting back behind the wheel
• Sleep disturbances, including nightmares or night terrors
• Feelings of hopelessness
• Inability to concentrate and other cognitive disturbances
• Diminished capacity to enjoy life and those activities that were formerly enjoyable

One of the most difficult aspects of these effects is that they can push the support of your friends and loved ones away just when you could use it most. Ensuring that your pain and suffering are well represented in your traffic accident claim is foundational to your ability to receive just compensation.

Your Physical Pain and Suffering

The following kinds of injuries are very closely associated with significant physical pain and suffering:

• Back injuries that lead to lingering and even chronic back pain
• Head injuries that lead to chronic headaches and even migraines
• Neck injuries, including whiplash (which is closely linked to chronic pain and significant losses in the range of motion)
• Traumatic brain injuries (TBIs), which can be physically and emotionally painful
• Injuries that cause nerve damage
• Broken or fractured bones, which can lead to chronic pain
• Dislocated joints
• Organ damage and other forms of internal damage

The burden of this physical pain can be difficult to assess because it can be difficult to accept. Many people believe that if you cannot see the damage, it is not real, but nothing could be further from the truth. The physical and emotional pain you experience is very real, and it should be addressed head-on in your traffic accident claim.

Proving Pain and Suffering in Your Traffic Accident Claim

Proving your pain and suffering is less straightforward than proving your lost earnings or your medical bills, but it is just as important. When you attempt to demonstrate the depth of your pain and suffering, several factors can play a role.

Medical Assessments

Your doctor and medical team are excellent resources for demonstrating the degree of pain and suffering you have endured. For example, when your doctor asked you to rank your pain early on (and throughout the process), the information gathered can help bolster your claim later.

Your medical team may be able to provide the following useful types of evidence for your case:

• Professional notes from your doctor, therapist, and other medical professionals
• Medical evidence from your appointments, such as from X-rays and other tests
• The expert opinion of a medical professional with considerable experience treating injuries like yours

Your Own Assessment

Your own assessment of your experience can also prove very powerful. Writing down your recollections of how the accident happened (and your feelings and experiences at the time) can help you remember the accident and your reaction to it more clearly.

Further, keeping an ongoing diary can help you manage your memories, feelings, and thoughts regarding your pain and suffering, which can prove elusive if you simply attempt to commit them to memory.

You do not need scientific evidence to share the immense impact that the pain you have suffered has had on your life. The judge or jury that decides your case is human and understands the kind of pain you describe. For example, if you can no longer pick up and carry your grandchildren, they understand how painful this is to you personally.

The Input of Others

Other people can also weigh in on how the accident in question has scarred you emotionally. In fact, such third-party testimony is often compelling. Your support system may spy consequences of your accident that you, in the stress and turmoil of the situation, fail to recognize.

Additionally, neutral witnesses, such as coworkers who you are not particularly close to but who notice the changes you have undergone, can offer some of the strongest evidence because these witnesses have no reason to overstate or embellish their testimony, which makes it very difficult for the other side to accuse them of bias.

The Multiplier Method

A common mechanism for determining the value of pain and suffering for personal injury claims in the State of Texas is the multiplier method. This method involves tabulating the extent of your economic damages, including your medical expenses and lost earnings, and multiplying that total by a multiplier between 1.5 and 5 to assign a value to your pain and suffering.

Let’s consider a very basic example that includes the following facts:

• You suffered a catastrophic injury that leaves you unable to work as a result of another driver’s negligence.
• Your medical expenses and lost earnings total $1 million in economic damages.

From here, a number will be assigned that corresponds to the seriousness of your accident. Because the injuries are catastrophic and life-altering, that number will likely be 5 (the top of the scale). In order to calculate your pain and suffering, your total economic damages will be multiplied by 5, leaving you with $5 million in pain and suffering.

This example is oversimplified, but it clearly demonstrates how the multiplier method works.

The Insurance Company’s Approach

The insurance company is guided by profit, so it will do what it can to keep your settlement (including your compensation for pain and suffering) as low as possible. Toward this end, it may fall back on one of its tried-and-true approaches.

Denying the Severity of Your Damages

The insurance company may challenge the severity of your pain and suffering. While the economic damages can be more difficult to refute, your pain and suffering is something the insurance company may feel perfectly comfortable denying.

However, just because the insurance company claims something does not make it so. If the insurance company refuses to address your traffic accident claim fairly, the law will have the final say in the matter.

Offering You an Early Settlement

If the insurance company offers you an early settlement offer that includes compensation for your pain and suffering, it can be tempting to take the money you need so desperately and to worry about whether or not it is adequate to cover your damages at a later date.

The insurance company is counting on you to let your desperation guide you, but you should not be fooled. An early settlement offer is a very good sign that the insurance company recognizes the seriousness of your claim and is trying to finalize it before you are fully aware of the extent of your damages (including your pain and suffering).

Denying Fault

Another tactic the insurance company may try is to shift fault to you (and away from their policyholder). However, the evidence in your claim (as skillfully compiled by your traffic accident attorney) should show who is at fault.

While having this blame foisted upon you can leave you feeling discouraged, you should not lose hope. The evidence will defend your stance. Even if you share fault in the accident, the State of Texas does not bar you from seeking the percentage of your damages that the other driver is responsible for (as long as he or she is at least 50 percent to blame).

Consider the following example:

• If you were exceeding the speed limit when the accident happened, you might be found 10 percent responsible for the ensuing traffic accident.
• The compensation you are ultimately awarded will be reduced by the 10 percent you were found to be at fault.
• If your damages ultimately total $100,000, this amount will be reduced by 10 percent, leaving you with $90,000 in total compensation.

Do not give in to the insurance company’s bullying or attempts to cajole you.

Prolonging and Complicating the Claims Process

Another technique the insurance company may employ is to complicate and lengthen the claims process, in hopes that you will accept a settlement amount less than the one to which you are entitled, out of sheer frustration and desperation. Moving beyond the insurance company’s red tape can feel like such a relief that you may believe it is worth accepting less.

There are laws against practices such as this, and your skilled traffic accident attorney will fight to ensure that your legal rights are upheld and that the insurance company closely adheres to the laws that govern that industry.

Work with a Skilled Personal Injury Attorney

If you have been injured in an accident, the path forward may be difficult. However, a seasoned personal injury attorney will act as your guide, helping you navigate the claims process while protecting your rights and your recovery.