How to Calculate Pain and Suffering in Settlements

You have been injured, though not through your own fault. Your insurance company offers to settle with you. It seems like a reasonable amount of money, but how can you be sure? Perhaps your injury is slight, and your inconvenience minimal. But how can you know that you won’t suffer from long-term injury? How do you know that the settlement will last until you are made whole or can return to work? Or perhaps your injuries are more severe. How can you be certain that your settlement will take care of your short-term and long-term needs?

Compensation can include funds to cover physical injuries such as hospital bills, doctor’s bills, rehabilitative therapy and other such expenses. It can also include funds to cover psychological injuries such as depression resulting from the injury, post-traumatic stress symptoms, or dealing with the loss of a limb or other catastrophic injury.

Claims filed through the civil courts can be divided into two categories – pecuniary and non-pecuniary. Pecuniary damages are those that can be readily calculated such as medical expenses or lost wages. Non-pecuniary damages are more esoteric, such as pain and suffering.

According to the Judicial Studies Board, several factors are considered when rendering judgments regarding pain and suffering. These factors can include:

  • Nature of the Injury – The injury must have a physical or psychological basis. Simply being unhappy does not constitute pain and suffering.
  • Severity – The pain and suffering caused by a broken back differs greatly from the pain and suffering caused by a bruised rib.
  • Duration and Prognosis – The judge will take into consideration the length of time that the injury has impacted and will continue to impact the claimant and the likelihood that he will recover.
  • Impact – The impact of an injury that will no longer permit one to wear stiletto heels in far lower than the impact of an injury that will leave one unable to walk.
  • Awareness – This factor can be tricky. It doesn’t necessary mean whether or not the person is “aware” of any deprivations caused by his injury, though such awareness can play a part in the judge’s decisions. However, if the injury resulted in the claimant going from a healthy, vibrant, productive human being to being in a vegetative state, it can be said that he has been deprived of certain things as a result of his injury, even though he may not actually have the mental capacity to be aware of those deprivations.

Additionally, the judge will consider the probabilities of the claimant’s future earnings rather than the possibilities. For example, if the claimant’s hand is crushed, he cannot claim that he is no longer able to pursue his life-long dream of being a concert pianist (even though he has never played the piano) and claim as future damages the wages of a concert pianist.

Given all of the variables that are considered in a claim for pain and suffering, the advice of a good solicitor may be the best guidance to ensure that your injuries are properly acknowledged and that you are properly compensated for both your short-term and your long-term losses.