One of the most common questions accident victims have once the initial shock of the accident passes and real-world obligations start to pile up is, how much is my case worth? While many damages are easy to calculate, the impact of pain and suffering is very difficult to value and may be worth more than your medical bills and lost earnings.
If you have suffered serious injuries after an accident, it’s important to understand how pain and suffering damages are calculated and what an injury attorney can do to prove the full extent of the turmoil, physical pain, and psychological trauma you have experienced.
What Is Pain and Suffering?
The term “pain and suffering” is used to refer to the many forms of psychological and emotional harm a victim may suffer after an accident. They are considered a type of non-economic damages because emotional or psychological harm has no intrinsic financial value. Because the harm is very subjective and the same injuries and circumstances can affect people in very different ways, determining damages for pain and suffering can be challenging.
Pain and suffering can refer to any physical pain, emotional suffering, or psychological distress suffered after an accident. Pain and suffering examples include:
- Physical pain from injuries or treatment
- Insomnia
- Fear
- Psychological trauma
- Anger
- Grief
- Depression
- Anxiety
- Inconvenience which recognizes the effects of financial difficulties and mental and physical challenges that can hamper anything from participating in hobbies and social activities to working
- Embarrassment or humiliation, a form of mental anguish
- Sexual dysfunction
- Post-traumatic stress disorder (PTSD)
- Reduced quality of life
- Reduced enjoyment of life
- Disfigurement or scarring
- Physical impairment
- Reduced life expectancy
- Increased susceptibility to future injury or harm
- Cognitive changes from a brain or head injury
- Loss of consortium, a form of pain and suffering suffered by family after the death of a loved one
Understanding Pain and Suffering Damages
California personal injury law allows accident victims to seek compensation for their losses from the at-fault party. The compensation you can recover is not limited to your financial losses like medical bills, property damage, and lost wages; it also includes non-economic damages. These are personal losses you have suffered that have no financial value including the physical pain you have suffered, the impact of your injuries on your daily life, and any psychological or emotional turmoil or trauma you experience.
The purpose of pain and suffering damages is to compensate a victim for the many ways in which the accident has affected their life beyond financial costs.
There is no cap on non-economic damages in California except in cases involving medical malpractice. In these cases, the cap on non-economic damages like pain and suffering is $250,000. Starting January 1, 2023, new legislation increases the cap to $350,000 for cases that do not involve wrongful death. This amount is increased by $40,000 every January 1 until it reaches $750,000. The cap is $500,000 if the case involves wrongful death with the cap increasing by $50,000 every January 1 until it reaches $1 million.
How Much Is Pain and Suffering Worth?
This is a common question injury victims ask, but compensation for pain and suffering is complicated, especially when it comes to how much a jury will award as payment for pain and suffering. For some injury claims, pain and suffering may not be awarded at all or it may be a fraction of the total economic damages. A claim for pain and suffering can be worth many times more than economic losses in other cases, especially cases involving catastrophic injuries or significant harm.
To determine fair pain and suffering compensation, many factors unique to your case must be considered.
- Circumstances of the accident such as whether the defendant behaved recklessly, engaged in egregious behavior, or caused intentional harm
- Liability of each party
- Type and severity of injuries
- Effect the injuries have on the victim’s daily life
- Whether the plaintiff is sympathetic to jurors
- Whether the plaintiff and their attorney present a strong case with evidence and testimony of the severity and effects of the injuries
- Whether the case settles with the insurance company or goes to court
California jurors receive CACI injury instruction 3905A which explains the many forms of pain and suffering they can consider, including future suffering the victim is likely to experience. These instructions entrust jurors with “vast discretion in determining the amount of damages to be awarded” and specifically notes that there is no standard or fixed means to calculate pain and suffering damages.
The very subjective and personal nature of these damages makes pain and suffering settlement examples incredibly unhelpful.
To best understand how much a pain and suffering claim is worth, it helps to first understand how insurers calculate pain and suffering damages.
How Is Pain and Suffering Calculated?
Insurance companies consider several factors to reach a pain and suffering settlement amount. Some insurers use claims outcome advisor (COA) software that analyzes data provided by the claims adjuster to determine a settlement range. Some use a multiplier or per diem method. Insurers can even use a hybrid of these methods or none of them to determine pain and suffering compensation.
Juries do not use claims adjustment software, but they may also use a per diem or multiplier method and a broader consideration of the circumstances of the case.
Here's how to calculate pain and suffering according to these common methods and how personal injury attorneys instead propose a settlement for pain and suffering that considers the full impact on the victim’s life.
Colossus Personal Injury Calculator
Many major car insurance companies use Colossus claims adjustment software or similar products to value personal injury claims. Colossus was first licensed by Allstate as a way to standardize claims and minimize payouts. The software uses a hidden rules-based system to convert information inputted by a claims adjuster about the severity and nature of injuries into a numeric score to value pain and suffering claims.
Colossus uses more than 10,000 rules to determine the questions it asks an adjuster to generate a payout range. It attributes severity points based on injury codes. The software can even consider the jurisdiction and the injury attorney’s record of taking cases to court!
While this type of pain and suffering calculator is fine in theory to give insurers a starting point, it has many flaws.
- Some insurance companies rely completely on Colossus to minimize personal injury and pain and suffering settlements
- Claims adjusters may be prohibited from exceeding Colossus values or considering any other factors
- Software can improperly evaluate a claim based on the information inputted by the claims adjuster
- Insurance companies can manipulate or adjust the program with their own value drivers associated with rules and injuries to lower resulting settlement values
Claims assessment software is designed to artificially lower the value of pain and suffering and other damages suffered by an accident victim. Artificial intelligence and software can never value the real impact of your injuries on your life or even recognize the many subjective factors involved in an accident.
Pain and Suffering Multiplier
Another way of calculating pain and suffering is a pain and suffering multiplier. Using this method, the insurer totals the economic damages in a case and multiplies the total by a multiplier of 1.5 to 5. The multiplier of 5 may be used for catastrophic injuries while the other end of the scale is for fairly minor injuries that do not need extensive treatment.
The variable or multiplier applied to damages can depend on:
- Type of injury
- Severity of injury
- Likelihood of full recovery or long-term disability
- Impact of the injury on your daily life
- Share of liability of each party
It’s important to realize that this multiplier range is typical for insurers calculating a settlement offer – you will find many examples of pain and suffering settlements with multipliers much higher or even lower than this range. For serious injuries or cases that involve egregious behavior, the multiplier can be 10 or higher.
Pain and suffering multiplier examples:
- A car accident victim suffers a broken leg and concussion with $20,000 in medical expenses and $2,000 in lost wages. A pain and suffering multiplier of 2 may be applied for these injuries for $44,000 in pain and suffering damages.
- A young person is struck by a drunk driver and suffers a spinal cord injury that has lifelong consequences. Economic damages are estimated at $950,000. A pain and suffering multiplier of 7 may be applied to account for the egregious behavior of the defendant, the severity of the injuries, and the young age of the victim.
Per Diem Method
In some cases, compensation for pain and suffering is determined with the per diem method. How to calculate pain and suffering per diem is straightforward: the number of days you suffered pain and mental anguish is multiplied by a dollar amount. This may be the amount you earn a day, but it may be lower for catastrophic injuries such as $20 per day for rest of your anticipated lifespan.
Insurers rarely use the per diem method to calculate pain and suffering damages for long-term injuries. Juries may use a per diem formula to award pain and suffering, even in cases involving catastrophic injury. A California personal injury attorney may ask the jury to award an amount such as $200 per day for every day the victim’s pain is likely to continue.
How a Personal Injury Lawyer Determines Pain and Suffering Damages
Insurance adjusters attempt to settle for as little as possible. They may use the lowest figure presented by their pain and suffering calculator or even adjust variables the software uses to reduce the value even further. Claims adjustment software can even consider the injury attorney’s track record and the likelihood they will file a lawsuit.
This is why it’s crucial to hire an experienced personal injury lawyer in California who is not afraid to take your case before a jury.
A personal injury lawyer will use a very different approach to value pain and suffering damages. Your lawyer must start negotiating with the insurance company by articulating what makes your case different and why the adjuster’s figure is inadequate. If the insurer is unwilling to reach a fair pain and suffering settlement, your lawyer must be prepared to file a pain and suffering lawsuit and present evidence and testimony to a jury who will consider factors that an insurance company disregards.
An experienced personal injury attorney will present expert testimony about the extent of your injuries and testimony from friends and family about how your life has been affected. This testimony will include specific details about the suffering and anguish you have experienced, such as being unable to hold your infant, being forced to leave a job you loved, or the basic tasks you are unable to perform without help. The jury can consider the real impact of your injuries as humans and more fairly determine compensation than any multiplier or software.
Schedule a Free Consultation with Berman & Riedel, LLP
After submitting a pain and suffering claim to an insurance company, you can be sure that the first settlement offer you receive will drastically undervalue the pain and anguish you have experienced. Working with an experienced California personal injury lawyer is important to help you fight back against these unfair offers and pursue the fair compensation you deserve for the devastating harm you have suffered and its lasting impact.
The San Diego personal injury lawyers at Berman & Riedel, LLP are committed to fighting on your behalf. We are not afraid to present your case to a jury with extensive experience at the negotiation table and in the courtroom. Contact our law office today for a free consultation with a San Diego personal injury attorney to discuss your case. While based in San Diego, we accept cases throughout California with case results that speak for themselves.
