Pain and suffering. Odds are, you’ve heard the term before in personal injury lawyer ads or in TV court dramas. But, if you or a loved one has suffered a spinal cord injury as the result of someone else’s negligent or malicious actions, pain and suffering becomes more than an abstract legal term—it becomes a part of your life.
When you’re seeking traumatic injury compensation in court, one of the hardest things to do is try to calculate the pain and suffering your injury has caused. How can anyone put a dollar value on human suffering? The truth is that there’s no hard rule for calculating pain and suffering.
What Does Pain and Suffering Mean in Court?
Before you calculate pain and suffering for your traumatic injury compensation, it’s important to know what the phrase means in court. Pain and suffering is a kind of umbrella term for a range of physical and psychological effects that occur as a result of an injury. It could include:
- Actual pain from injuries.
- Development of phobias and other mental disorders.
- Loss of function.
- Grief/emotional distress.
Any of the above (and more) could be considered part of a pain and suffering claim in court. Because pain and suffering is so broadly defined, it can be difficult to fully account for in court. Another complicating factor is that the pain and suffering you experience is subjective—nobody can take a look at you and know all of the hurt and loss you’ve experienced and express it as a set number on a scale.
If There’s No Standard, Then How is Pain and Suffering Calculated?
Different lawyers and insurance companies might try to calculate pain and suffering in different ways.
One common method for establishing pain and suffering damages is to take the direct losses that have been incurred—such as medical bills and lost earnings—and apply some multiple of those losses. The multiplier can be any number, but is usually less than 4 times the value of your damages.
The issue with this method of calculating pain and suffering is that it is, at best, a rough estimate. Also, this may not apply in all cases—some pain and suffering might make more sense to a jury in one case than another.
Another means of calculating pain and suffering is to use the “per diem” model. In this model, a specific dollar amount is set to be the value of the suffering of each and every day from the date the injury occurred to the time that “maximum recovery” is reached. So, if the assigned amount is $75, and it takes 300 days to recover, the pain and suffering damages would be calculated as being $22,500.
There are some issues with this—especially in cases involving permanent damage to the spinal cord or brain.
First, if you’ve suffered SCI or brain trauma, there’s a very real chance you won't fully recover. So, it can take a long time to establish if you’ve truly reached “maximum recovery” after your gains from therapy have topped out.
Second, most spinal cord and brain injury survivors can’t afford to wait to reach maximum recovery before filing a personal injury claim. There’s a limit to how long you can wait to file a claim—if you miss this deadline, you can’t file at all. So, you may end up either rushing to establish a potential recovery date that could be inaccurate, or waiting so long you lose the chance to collect compensation.
How Can You Prove Pain and Suffering in Court?
Another tricky aspect of pain and suffering claims is that they are often difficult to prove in court. As we said earlier, pain is subjective—and nobody can really know how much suffering you’ve been through just by looking at you.
Medical bills and records can help prove the extent of your injuries, but may not necessarily convey how much those injuries have put you through. But, at least they’re a start.
Other evidence you might want to collect includes:
- Any and all psychiatric evaluations you’ve undergone; and
- Testimony from friends and family about changes in your life post-injury.
Anything that can be used to demonstrate what your injuries have cost you emotionally and physically could be valuable for a claim of pain and suffering. In most cases, having more evidence of something is better than less.
However, even with plentiful evidence, it is easy for others to undervalue your suffering from a traumatic brain or spinal cord injury. This is why it’s so important to have the support of an attorney who has experience in handling SCI and TBI cases. Such an attorney has experience in calculating fair and reasonable damages for pain and suffering.
Don’t get sold short. Contact an experienced SCI lawyer as soon as possible!
Written by Spinal Cord TeamSpinalCord.com has been created as a resource for patients of spinal cord injuries and their families. Find everything you need to learn more about your injury, locate a doctor or treatment center, or discover financial relief to support you through this difficult time.
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