When a personal injury, from a motor vehicle accident, medical malpractice, or other serious incident, turns your life upside down and causes you significant physical pain and emotional duress, the law entitles you to seek compensation from the at-fault party. Economic damages are the most common type of damages you can recover, and the most obvious, as they include compensation for things like medical expenses, lost wages, and property damage. However, you can also claim non-economic damages such as pain and suffering. But what is pain and suffering? And how much money can you sue for when you experience pain and suffering? Experienced New York personal injury lawyers can help you better understand what pain and suffering entails, how insurers and the courts calculate pain, and suffering, and what you can do to maximize your recovery.
What is Pain and Suffering?
Pain and suffering is a legal term that refers to the physical pain and emotional distress that personal injury victims experience (after car accidents and other serious incidents) and that are compensable outside of economic damages. More broadly, it refers to the discomfort, pain, inconvenience, and anguish that a personal injury causes an accident victim.
In New York, pain and suffering also refers to all nonpecuniary damages, which are those that do not have an assigned economic value. Examples of nonpecuniary damages include loss of enjoyment of life, reduced quality of life and emotional trauma. Pain and suffering damages can fall into one of three categories: physical pain and suffering, emotional pain and suffering, and loss of consortium.
Physical Pain and Suffering
Physical pain and suffering, in a legal sense, refers to any actual pain that lasts for weeks, months, or even years. For some people, the physical pain may persevere for a person’s entire life. In other words, pain that qualifies for pain and suffering damages is chronic.
Examples of chronic pain for which the courts have awarded accident victims include the following:
- Traumatic brain injury (TBI)
- Internal organ damage
- Nerve damage
- Back or neck pain
- Broken or fractured bones
- Pulled or sprained muscles
- Dislocated joints
These medical conditions commonly cause chronic pain that persists for years. In some cases, such as with traumatic brain injury or paralysis, the damage is permanent.
Emotional Pain and Suffering
The trauma of an accident, combined with the restrictions and pain that physical injuries cause, can trigger or exacerbate mental or psychological distress following an accident. When that mental distress becomes chronic, it may qualify for pain and suffering damages.
Examples of emotional pain and suffering that may qualify for compensation are as follows:
- Psychological trauma
- Post-traumatic stress disorder (PTSD)
If you experience cognitive changes after an accident because of a physical injury, such as reduced concentration, aggression, memory problems, or depression, you may claim them as emotional damages. Quantifying emotional pain and suffering may be more difficult than quantifying physical pain and suffering. It may be in your best interests to retain the help of experienced and knowledgeable personal injury attorneys.
Loss of Consortium
If you lose a loved one in an accident or because of the injuries he or she sustained in the incident, the law entitles you to seek compensation via a wrongful death claim. A wrongful death claim serves two purposes: 1) It allows you to hold the at-fault party accountable and 2) it allows you to seek monetary recovery for your loved one’s medical bills, lost wages, funeral expenses, and other costs. Via a wrongful death claim, you can also seek damages for loss of consortium.
Loss of consortium refers to a special type of pain and suffering that affects aggrieved family members. The unexpected and preventable death of an individual often triggers mental anguish in surviving loved ones. This mental anguish is often the result of loss of consortium, which may include the loss of the following:
- Love, care, and affection
- Spousal intimacy
- Parental guidance
- Household services
This list is not exhaustive. If your loved one’s death left a hole in your life, and if that hole has caused you considerable grief, you can file a claim for and possibly recover damages for loss of consortium.
How Much Money Can You Sue for Due to Pain and Suffering?
In an attempt to prevent plaintiffs from abusing the system and to keep over-sympathetic juries from awarding excessively generous amounts, many states have placed caps on non-economic damages in personal injury cases. While these caps certainly reduce the potential for abuse, they also limit the recovery available to individuals who could truly benefit from pain and suffering damages.
Fortunately for claimants in New York, The Empire State has yet to join the countless others that have enacted damage caps. As a result, there is no real limit to how much you may claim in your personal injury claim or lawsuit.
That said, that does not mean you will automatically recover the amount you claim. A few factors can affect your monetary recovery, including comparative fault laws and your or the defendant’s insurance policy limits. Your NYC personal injury attorneys can help you understand what factors may affect your non-economic damages and what you need to do to maximize your recovery.
How Pure Comparative Fault Affects Your Recovery
States’ comparative fault laws affect how much in both economic and non-economic damages plaintiffs may recover via their personal injury claims.
To date, there are three main doctrines of negligence that states can follow:
- Contributory Negligence: Per contributory negligence laws, plaintiffs may not recover compensation if insurers or jurors determine they are even 1% at fault for the accident.
- Pure Comparative Negligence: Under this doctrine, plaintiffs may recover compensation regardless of how much fault they assume — even if their level of fault reaches 99%.
- Modified Comparative Negligence: There are two versions of this law: the 50% rule and the 51% rule. In states that follow the 50% rule, plaintiffs may only recover compensation so long as their level of fault does not meet or exceed 50%. In states that follow the 51% rule, plaintiffs may only recover compensation so long as their level of fault does not meet or exceed 51%.
New York is one of 12 states that abides by the pure comparative negligence doctrine. What this means is that you can recover economic and non-economic damages regardless of how much fault you assume, so long as you are not 100% to blame. However, know that your percentage of fault will affect your pain and suffering award in two ways.
For one, the insurer or courts will reduce your award by the percentage of fault you assume. As an example, say you file a claim for $100,000 in pain and suffering damages. Jurors decide, however, that you were 60% at fault for the accident. The most you can recover in non-economic damages is $40,000, which is $100,000 less 60%.
However, the courts may further reduce your award based on your percentage of fault. When calculating how much your pain and suffering is worth, the courts weigh several factors, including the egregiousness of the at-fault party’s actions. If you share close to or the same level of fault as the defendant, the deciding parties may have little sympathy for you. If this is the case, they may decide that the amount you claim is too much and negotiate a lower amount. It will then reduce that lower amount by your assigned percentage of fault.
How Insurance Policy Limits May Affect Your Recovery
While there is no limit to how much you may demand in pain and suffering damages, most recoveries are limited by the limits of the insurance policy that will be used to pay the settlement.
For example, the courts or insurers may determine that the value of your pain and suffering easily exceeds $1 million. While you may assume your settlement will, therefore, be seven figures, most drivers carry policies with liability limits of $100,000 or less. If the defendant in your case has a policy with low limits, you may struggle to recover anything more than the value of your actual damages.
Your personal injury attorney can help you identify all possible avenues of recovery that can help you get the highest dollar amount for your claim. This may entail exploring non-insurance sources, such as the defendant’s assets, or filing a claim against your own insurance company.
Calculating Pain and Suffering
In addition to asking, “How much money can you sue for due to pain and suffering,” you should also inquire as to how courts and insurers calculate pain and suffering damages. There are two main methods insurers and jurors use to calculate pain and suffering.
The Multiplier Method
The first and most common way to calculate pain and suffering is with the multiplier method. This method entails multiplying your actual or “special” damages — otherwise known as your economic losses — by a multiplier, which is a number between 1.5 and 5. In cases of severe injuries, the multiplier may be higher.
Coming up with an appropriate multiplier is easier said than done. Both your personal injury lawyer and the defendant’s attorney will consider several factors to come up with a multiplier each respective party deems fair. Those factors may include but are not limited to the severity of your injury, the degree of impact the injury has on your daily life, your prospects for a quick and whole recovery, and what degree of fault, if any, you assume for the incident. Once each party decides on a multiplier, the negotiations begin.
Though the multiplier is the most commonly used method for calculating pain and suffering damages, it does not come without its drawbacks. Understandably, you will argue for a higher multiplier, while the defendant will argue for a lower one. It is important that you show up to negotiations with a reasonable multiplier and the evidence and documentation to assert your stance.
The Per Diem Approach
If you go the per diem route, you would essentially set a daily rate for your pain and suffering, the idea being that the defendant should have to compensate you X amount for each day you live in pain and with emotional duress.
Though you have the freedom to demand any rate you want, it would be in your best interests to keep your rate reasonable. “Reasonable,” in terms of pain and suffering damages, is a rate that is equivalent to, or close to, your actual daily earnings. The rationale behind this is that the pain and suffering your injuries cause should, at the very least, be comparable to the effort you would otherwise exert to go to work each day.
In action, the per diem approach would look like this: You slip and fall in a grocery store and break your arm. You must wear a cast for two months, but then require surgery because the bone did not set properly. Your arm takes another month to heal, but you continue to experience sharp pain for another three months. In total, you have experienced six months of pain and suffering. You currently make $60,000 per year, which breaks down to $230 per day when you divide your salary by the average of 261 annual working days.
To calculate your pain and suffering damages, multiple $230 by the number of days you suffered. Using the example figures above, your settlement would be roughly $41,400.
Using this method becomes a little more complicated when you are dealing with a long-term or permanent disability. In these cases, you would want to work with an experienced New York personal injury lawyer who has the team and resources necessary to help you secure the maximum recovery.
Find Out How Much Your Case is Worth
If you sustained a personal injury in an accident, you may be able to recover damages for more than just your medical expenses and lost wages. The law may entitle you to pain and suffering as well. To fully understand what your case is worth and for how much you should file — and to do what is necessary to maximize your recovery — work with an experienced personal injury lawyer in New York, NY. Contact Abrams & Associates, P.C. to schedule your free consultation today.