What is Pain and Suffering Worth in a Personal Injury Case?
In a personal injury lawsuit, the victim can sue for medical expenses, lost income, and pain suffering. Generally, pain and suffering comprises the largest component of a damages award.
What are “damages” in a personal injury case?
As part of any personal injury claim, the injured party has to prove damages. Damages are classified into two categories: economic, or tangible losses, and non-economic or intangible losses. These are also sometimes called “general damages” and “special damages.”
Economic damages aka special damages are any out-of-pocket expenses or losses that the victim incurred because of the injury. For example, medical expenses, lost income, loss of earning capacity, and property damage that have a specific value are all economic damages. In cases where there are future losses alleged, the medical bills, lost income and benefits, and property damage will also have a specific or general range of value.
Non-economic damages (aka general damages) which include pain and suffering and emotional distress, are subjective with no formula to calculate the value of the pain, anguish, and distress that the victim has endured and may continue to experience.
So, in a car accident, sexual assault, pedestrian accident, or any other injury claim, how are non-economic damages established?
How do you calculate Pain and Suffering in a personal injury case?
If you suffer an injury, you will certainly experience some degree of pain and suffering. While we are all different in how we experience and endure pain, a jury will look at how the injury affected you and if the degree of pain and suffering, and emotional distress that you are alleging is sincere and supported by the evidence.
Since general damages are often the largest portion of damages awarded by a jury, establishing your non-economic damages is essential if an injured victim is to be considered or felt to be whole, or is reasonably compensated. An experienced and knowledgeable personal injury lawyer will use all available evidence to educate a jury on how the plaintiff’s injuries have impacted his life and that of his family.
Factors that are often cited in persuading an insurer or jury to award a reasonable sum for pain and suffering include:
- The severity of the initial injury—photographs from the accident scene, of the victim’s injuries taken at the hospital or at home; recorded observations by the EMTs; medical records; X-rays and other diagnostic images that show a severe fracture, penetrating wound, or internal damage; medical testimony from treating doctors; testimony from friends and family members who can share stories about the person before and after the injury.
- Time of recovery—was the victim hospitalized for several days, bedridden for a period of time, or reliant on a wheelchair.
- Consequences of the injury—testimony or medical report from a treating physician stating that the plaintiff has a permanent impairment of a bodily function or permanent disability rating and/or will likely experience chronic pain such as headaches, back or neck pain, or will have difficulty walking for the rest of her life.
- Future medical procedures—will the victim likely have to undergo future surgery or other procedures that entail a period of recovery and rehabilitation.
- Lost time from work—the plaintiff had been incapable of performing his usual job duties for months or may never be able to return to his job or engage in similar work.
- Medical expenses—the plaintiff’s medical expenses are extensive because of physical therapy sessions, vocational therapy, surgeries, drug expenses, and must use assistive medical devices.
- Inability to engage in routine daily or recreational activities—the frustration in not being able to drive, shop, shower, dress oneself, play with children, or participate in favorite activities like basketball, running, swimming, biking, or any other leisure activity for many months, or possibly forever.
- The effect the injury has had on the plaintiff’s family—domestic arguments and disputes that are now routine, or a separation or divorce since the time of the accident.
How does the jury decide how much money to give for pain and suffering?
At a trial, the judge issues verbal instructions to the jury at the end of the case once both sides are done presenting the evidence. The judge’s instructions are called jury instructions. One or more of the instructions addresses the issue of pain and suffering. The jury is told that a person who is impaired by the injury or who is unable to work as a result, or who has a diminished capacity to work, may experience pain and suffering but that every person is entitled to enjoy their physical and mental abilities. A jury is also told to consider that a person may experience a dread of physical suffering that is reasonably certain to occur in the future. Georgia Pattern Jury Instruction § 66.201. In returning a verdict, the jury is expected to award a reasonable sum based on “an impartial judgment based on their enlightened conscience.” Georgia Pattern Jury Instruction § 66.501.
The victim’s personal injury attorney can ask the jury for an award for pain and suffering so long as the argument conforms to the evidence. O.C.G.A. § 9-10-184. Some attorneys will ask that a jury multiply the plaintiff’s special or economic damages (medical and wage loss) by a certain number to arrive at a sum. Others will place a dollar figure for each day of the plaintiff’s expected lifespan. There is no formula. It is the jury’s decision on how much to award the injured victim.
Emotional distress is mental anguish. In Georgia, you cannot make a claim for emotional distress unless there was a physical impact that resulted in a physical injury. For example, a bystander who witnessed a fatal car accident cannot claim emotional distress unless she was also physically injured in the accident as a driver, passenger or pedestrian. However, it is possible to allege and recover for emotional distress without a physical injury under very limited circumstances such as when a parent directly observes the death of her child. There may also be an exception in a situation where a victim may allege mental anguish without any physical injury where there is only property damage. In this case, the property damage claim is a tort separate from a personal injury one where an impact and physical injury must be shown. Nationwide Mut. Fire Ins. Co. v. Lam, 248 Ga.App. 134 (2001).
Emotional distress claims are often brought in car accident claims, traumatic brain injuries, wrongful death, sexual assault, and nursing home neglect or abuse. In a sexual assault case, the terror experienced by a rape victim who will likely suffer post-traumatic stress disorder can be substantial. A car accident victim may experience intense feelings of fear of being in another accident so that he is unable to drive or even be a passenger. To clearly and credibly present damages for emotional distress, it is helpful if the claimant has received psychological counseling or therapy.
Similar to the jury instruction on pain and suffering, the amount to be awarded is based on the enlightened conscience of the jury after considering the incident and the plaintiff.
What does “Loss of Consortium” Mean?
A spouse of an injured victim has a potential and separate claim for loss of consortium. This claim is only available to a married spouse and not a parent, dating partner, or other relatives of the injured party. The claim must be filed within 4-years of the date of the injury suffered by the injured spouse instead of the standard 2-years for other personal injury actions with some exceptions. O.C.G.A.§ 9-3-33.
Spousal Claim for Loss of Consortium
Consortium refers to certain services such as the household labor expended by the injured spouse in cleaning, shopping, cooking, childcare, and any other services performed that the spouse has not been able to perform. But it also encompasses the loss of love, sexual relations, companionship, and affection that arises from a marriage. There is no set value on this loss if it is temporary, and again, it is determined by the judgment of the enlightened conscience of an impartial jury. You can establish the value of a loss of consortium claim this by having the spouses testify about the affection and intimacy they felt for each other, but which now is lost, if sex was a common occurrence but is now rarely if ever experienced, and what household services the non-injured spouse now has to perform.
If the loss of consortium is permanent, then the loss is more objective and obviously more substantial since the injury will generally be a catastrophic one such as paralysis or loss of a bodily function. For example, the spouse may have to care for a paralyzed spouse by feeding, clothing, grooming, and bathing him. A forensic economist can calculate the expected joint life expectancy of the injured spouse and place a market value on the services the non-injured spouse has to perform. An experienced Atlanta wrongful death lawyer can further explain these damages and assist you with filing a claim.