Suppose a drunk driver causes you to suffer a truck accident that results in a back injury and six months of unrelenting pain. Should you be satisfied with a compensation award that covers only your medical expenses?
You shouldn’t be, as you are entitled to far more than that. Pain and suffering is one of the primary elements of a Louisiana personal injury claim, and it often adds up to more than half of a personal injury compensation award.
What Is Pain and Suffering?
Different states define “pain and suffering” damages in different ways. In Louisiana, pain and suffering damages is just another name for non-economic damages. These damages can include:
- Physical pain and suffering;
- Disfigurement (amputation of a limb, for example);
- Emotional distress and mental anguish;
- Depression;
- Loss of enjoyment of life;
- Loss of companionship;
- Cognitive deficits caused by a defective drug;
- Psychological trauma;
- Post-traumatic stress disorder (PTSD);
- Anxiety;
- Grief; and
- Diminished quality of life.
This list is not necessarily exhaustive.
Calculating Pain and Suffering Damages
The two most common methods of calculating pain and suffering compensation are the multiplier method and the per diem method. They are not the only methods, however. Don’t forget that pain and suffering is only one element of personal injury damages, even if it is often the largest element.
Method 1: The Per Diem Method
“Per diem” just means “per day.” Under the per diem method, you calculate a daily value for your suffering ($400, for example). Take this value and multiply it by the number of days you suffered (155 days, for example).
The product of these two numbers ($62,000) is the amount of your pain and suffering claim. Add this to the other elements of your claim to arrive at your total damages claim.
Method 2: The Multiplier Method
Under the multiplier method, you select a “multiplier” with a value that usually ranges from 1.5 to five. For example, you might select four as your multiplier. You then multiply this number by the total amount of your economic damages to arrive at your damages for pain and suffering.
Factors that determine the amount of your multiplier
Following are some of the most important factors that determine the value of a multiplier.
- How serious were your injuries?
- What is your prognosis? Do doctors expect a full recovery?
- How seriously did your injuries affect your day-to-day life?
- How much physical pain did you endure?
You are free to add your own factors, at least to the extent that the opposing party or the court will accept them.
Method 3: The Insurance Company’s Computer Program
Don’t fall for this one. Insurance companies use their own proprietary algorithms to determine the value of a pain and suffering claim. You can even find them online. You can rest assured that these algorithms will drastically undervalue your claim. Don’t ever trust them.
Method 4: Whatever Amount You Can Negotiate
There is no law requiring you to use the per diem method, the multiplier method, or an insurance company’s computer algorithm. You can negotiate any amount you think the opposing party will accept. Demand as much as you want, and if you don’t like the defendant’s response, you can always go to trial.
Corporate defendants, in particular, do not want to go to trial. Their fear is that a “runaway jury” will award a ridiculous amount of money to a claimant on the assumption that a “rich corporation” took advantage of a consumer and that the corporation has unlimited amounts of money to spend. In many cases, a corporation will agree to a large settlement just to avoid this possibility.
Calculating Future Pain and Suffering
If you make a full recovery before you file your claim, the value of your future pain and suffering will be zero. It is possible, however, that you will be looking at a long period of chronic pain. You might even be facing a lifetime’s worth of pain.
You deserve compensation for this pain. The best way of proving it is to hire an expert to testify as to the probable magnitude and duration of our future pain. You might also consider calling your own doctor as a witness.
Special Case #1: Workers’ Compensation Claims
A large percentage of injuries that cause pain and suffering happen in the workplace. The workers’ compensation system was designed to prevent workplace injuries from clogging the courts and to prevent employers from going broke paying for them. Because of this, you cannot take a workers’ compensation claim to court except under unusual circumstances. Furthermore, you cannot claim pain and suffering damages for a workers’ compensation injury.
There is a loophole. If you can find a third party who you can prove responsible for your injuries, even if the injuries happened while you were at work, you can escape workers’ compensation restrictions and file an ordinary personal injury lawsuit seeking pain and suffering damages.
Special Case #2: Wrongful Death Claims
If you die from your injuries, a wrongful death claim arises in favor of your surviving close relatives. Although they cannot seek any damages called “pain and suffering,” they can seek the functional equivalent in the form of:
- Grief and emotional distress; and
- Loss of your care, companionship, guidance, and emotional support as a result of your death.
Survivors can also seek economic damages. All told, compensation for a wrongful death claim can add up to quite a bit. You calculate them in much the same way that you calculate an ordinary non-economic damages claim in a personal injury lawsuit.
Insurance Company Defenses Against Pain and Suffering Claims
You can be sure that the insurance company, or whoever else is responsible for paying your claim, will fight back with every legal weapon they have available. Following are some examples.
- Insurance coverage limitations: If the insurance policy limit is $50,000, for example, that’s all the insurance company will pay, even if your claim amounts to $10 million.
- Comparative fault: If you go to trial, a court will assign you a percentage of fault for the accident (assuming that it was partly your fault). You will lose the exact same percentage of your damages, including the same percentage of your pain and suffering damages.
- Failure to mitigate your damages: The defendant is not responsible for paying any damages that you could have avoided through the exercise of reasonable care. If you suffered a head injury because you refused to wear a motorcycle helmet, for example, the defendant might be able to avoid paying for your head injuries.
There are many other defenses the opposition may raise as well, depending on the case.
A Lake Charles Personal Injury Lawyer Can Help Calculate Your Pain and Suffering Compensation
The path to understanding and claiming pain and suffering damages can be daunting. With the guidance of a dedicated Lake Charles personal injury attorney, however, you can navigate the journey with confidence. Contact us at Hale Injury Lawyers for a free consultation today at (337) 888-4253.
