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How the Value of Pain and Suffering in a Personal Injury Case is Calculated

How the Value of Pain and Suffering in a Personal Injury Case is Calculated
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How the Value of Pain and Suffering in a Personal Injury Case is Calculated

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Personal injury claims tend to revolve around two key components. The first and generally easiest to calculate is the economic component, principally compensation for medical costs, lost earnings and property damage. The second component is typically harder to calculate, yet can prove to be the most significant of the amounts demanded in a claim. This consists of what are called ‘non-economic’ damages.

Non-economic damages

These are variously called ‘pain and suffering’ compensation, ‘loss of enjoyment of life,’ ‘emotional and psychological suffering’ and so on. The basis of this component is that in addition to the actual physical injury or injuries caused by an accident or incidence of medical malpractice, there are psychological ‘injuries’ as well. A victim of negligence may lose confidence, experience grief, insomnia, constant worry, suffer from ongoing traumatic thoughts and feelings and / or PTSD, find it hard to relate to friends and close family, just to mention some of the common consequences of a serious injury.

Calculating an appropriate amount to include in a personal injury or medical malpractice claim for these non-economic damages presents problems that are different from calculating more readily items like lost earnings. There is no hard and fast answer as each situation is unique. Attorneys often require the help of medical professionals trained as legal consultants to determine these criteria.

The multiplier method

In some cases, attorneys working for the plaintiff may use a ‘multiplier’ method, normally a multiple between 1 and 5 of the amount of economic damages, i.e. lost earnings and medical costs. The multiplier would depend on the severity of the injury and how much of an impact it has on the plaintiff. For example, if the plaintiff had a broken shoulder blade, the attorney may use a multiplier of, say, 3. If the total economic costs were $3,000, then the pain and suffering calculation would be 3 x $3,000, i.e. $9,000.

The per diem method

In other cases, attorneys may use a ‘per diem’ calculation. This is a daily amount for each day that the plaintiff experiences suffering from the time of the accident up to the point where there is full recovery. A useful figure for a per diem pain and suffering calculation would be based on similar previous cases. For example, if the plaintiff suffered for a period of 3 months and the per diem figure was valued at $100, then the pain and suffering component would be 90 x $100 or $9,000.

Another method used by some insurance companies when calculating pain and suffering payments is done by a computer program. The program inputs information from the severity of the injury, how long it lasts, the type of medical treatment used and then comes out with a ball-park figure.

Whatever the method used, there may still be an adjustment after taking into account testimony from friends, colleagues and relatives about the emotional and psychological toll that the injury had on the plaintiff.

Assistance from trained nurse consultants and psychiatrists can help attorneys come up with a fair calculation for pain and suffering calculations to be used in claims. For example, if the plaintiff has been seeing a psychiatrist for bouts of anxiety or insomnia, flashbacks or PTSD, this testimony can be a valuable addition to the determination of compensation.

 

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