Calculating Reasonable Pain and Suffering
Reasonable pain and suffering damages vary from case to case, and are too difficult to calculate without a close examination of the facts of each accident. Assigning a reasonable value for something as intangible and subjective as pain and suffering is difficult because everyone has a different pain threshold and human endurance, and every injury has a unique effect on the individual suffering it. A court will attempt to assign pain and suffering damages fairly based on the circumstances of the case, but it is difficult for anyone, particularly people outside the legal profession, to predict a fair value when filing a personal injury case.
How Attorneys Value Pain and Suffering
Before filing a personal injury lawsuit, attorneys will place a value on the claim. As part of calculating value, an attorney will include pain and suffering by looking at the following:
- To start, lawyers look at cases where other people have had similar injuries - like a “blue book” for pain and suffering. This market value on pain and suffering established by similar cases is a starting point from which lawyers operate.
- Although it is a little imperfect, attorneys will calculate pain and suffering at 1.5 - 4 times the amount of actual damages (costs of the injury / treatment). For example, if the actual cost of the injury was $1,000, pain and suffering could be $1,500 - $4,000 depending on how serious it is.
Once attorneys have a range in which they can reasonably calculate pain and suffering, they consider the specific factors of the case in order to get a value. Lawyers look at:
- The age and physical condition of the injured party,
- Any unique treatments or side effects of medication,
- Illnesses or ailments that became worse or more frequent as a result of the injury, and
- The lasting impact that the injury has on a victim's quality of life. If the injured party can no longer spend time with her children or take part in his favorite hobby, then the value placed on pain and suffering will be higher
By comparing an injury to past cases, setting a range based on the actual damages, and working through the unique circumstances of each case, personal injury attorneys are able to set acceptable values for pain and suffering damages. A court or a jury may disagree and determine the value is different, but having a well defended starting point is a critical step.
Pain and Suffering Calculation Examples
To illustrate how an attorney may calculate pain and suffering, and how the damages differ so dramatically depending on the circumstances of each case, consider the following questions and explanations:
- Is it reasonable for someone who sustained only minor soft-tissue injuries (i.e., bruises, muscle strain, tendon strain, ligament strain) to collect $15,000 for pain and suffering while someone who suffered a fractured leg gets only $5,000? Looking beyond the simple explanation of the injury, consider that the person with the minor soft tissue injuries is 85 years old and has trouble getting around because of osteoarthritis, but managed fine before the accident. Now he experiences a lot more pain in his neck and back and can’t sit for any length of time and can’t walk to the grocery store and back. He needs to go the doctor for treatment, but that causes even more pain because it hurts to get into and out of a car. Turning to the fractured leg, suppose it was only a hairline fracture of the ankle requiring a soft removable cast for only two weeks. She works at a desk all day, rides an elevator up and down in the building. She told the lawyer in her deposition that it doesn't hurt—she takes no pain medication. No physical therapy will be required afterwards. Only three visits to the doctor were needed, totaling $250 plus $100 for the removable cast. Looking beyond the injury, it seems the difference in pain and suffering damages makes more sense.
- Does it make sense for someone with some bruises and abrasions to get $50,000 while someone else with broken fingers gets only $20,000? Maybe. Why maybe? In this situation, $50,000 does seem like a lot of money, until you find out that the injured party has diabetes and will have to be hospitalized and face a long recuperation because of the open abrasions, if they go away at all. He may be treated for this malady for months or even years to come. He’s also prone to infection. A one week stay in the hospital could cost $10,000 just for the room itself, without taking into consideration the physicians’ bills, medical supplies, prescription medicines, etc. As for the person with the broken fingers, he’s only 4 years old and the injury is on his non-dominant hand. He’ll be fine in a week to ten days. There will be no pain when they’re splinted. He might be a little sore for a few days after the splint comes off. So, $20,000 may even be too much.
These scenarios demonstrate that what is reasonable for one person is not reasonable for another. Pain and suffering damages are very fact specific, and can not be determined by simply looking at the nature of the injury. Attorneys review each case thoroughly in order to argue reasonable pain and suffering based on the injury, the condition of the victim, and the specific degree to which the injured party was affected.