If you have been injured in a car accident that was not your fault, you can usually seek compensation from the at-fault party’s insurance company, by filing what's called a "third-party claim". It is usually best to obtain legal representation to maximize the settlement you receive. The insurance company should compensate you for your medical expenses as well as any lost wages. In addition, the insurance company should provide you with some compensation for your general “pain and suffering.” This article discusses when an insurance company will offer compensation for pain and suffering, and how this is calculated.
What is "Pain and Suffering?"
Pain and suffering is a legal term that encompasses a broad range of injuries that a plaintiff may suffer as a result of an accident. It includes:
- Physical pain
- Mental injuries
Some of these would include fear, insomnia, grief, worry, inconvenience and even the loss of the enjoyment of life.
In almost every personal injury case, the plaintiff should be able to obtain some amount, even a small amount - and sometimes substantial - for pain and suffering damages.
How does an insurance company calculate pain and suffering damages?
There is no established rule for how an insurance company must calculate pain and suffering. Many attorneys were trained in law school to use one of two methods for calculating pain and suffering. The first method is to multiply the plaintiff's actual damages (medical bills and lost wages) by a certain number, generally between 1 and 5 (depending on the severity of the injury). For example, if a plaintiff incurs $3,000 in medical bills related to a broken leg, he might multiply that by three, and conclude that $9,000 represents a fair amount to demand for pain and suffering.
Alternatively, many plaintiffs’ attorneys use a per diem (per-day) method. With this approach, an established amount – a $100.00 for example – is assigned to every day from the day of the accident until the plaintiff reaches maximum recovery.
However, insurance companies are under no obligation to use these methods in calculating pain and suffering. Many companies use computer programs to determine what amount to offer for pain and suffering. These programs often take into account not just the type of injury, but also the type of medical treatment the person sought.
For example, insurance companies usually consider medical treatment by a physician to signify a more serious and compensable injury than does treatment by a chiropractor. Insurance companies also take into account the length of time the claimant sought treatment. If treatment seems excessive for the type of injury, the insurance company will not include all of the treatment in its calculation of pain and suffering.
In simpler terms, calculating pain and suffering is complicated, but it is usually accomplished with a computer program that takes into account various elements of the case and circumstance.
Proving Pain and Suffering
Damages for pain and suffering are recoverable, but how can they be proven to an insurance adjuster? The extent of an injury and accompanying pain and suffering can be evidenced through documentation such as:
- Personal journals that record the victim's physical and emotional stress
- Proof of treatment by a mental professional (necessary where the plaintiff is claiming injuries such as increased anxiety, insomnia, or depression)
Work with Our Compassionate Lawyers
If you or a family member has been injured in an accident caused by another person, it might be a good idea to consult an experience personal injury attorney. We will tenaciously represent you and work to get you the maximum amount you deserve. Please contact Kalfus & Nachman today by calling (855) 880-8163. We are proud to serve the communities of Norfolk, Newport News, and Roanoke, Virginia.