If you’ve suffered an injury due to someone else’s negligence, you may be entitled to compensation for both your economic and non-economic damages. Medical bills and lost wages (economic damages) are relatively straightforward to calculate. However, it can be far more challenging to determine an appropriate figure for your intangible losses. “Pain and suffering” is a major part of these less concrete damages (non-economic damages).
Pain and suffering damages often constitute a substantial portion of a personal injury claim’s value. Understanding how these damages are calculated is key to ensuring you receive full and fair compensation.
What Are Pain and Suffering Damages?
In New York, pain and suffering refer to the physical and emotional hardships resulting from an injury. These damages are inherently subjective and may include physical pain and emotional and psychological harm.
Physical pain may include:
- Broken bones
- Back and neck pain
- Dislocated joints
- Headaches
- Internal organ damage
- Nerve damage
- Paralysis
- Traumatic brain injuries
Emotional and psychological harm may include:
- Depression
- Anxiety disorders
- Post-traumatic stress disorder (PTSD)
- Cognitive changes
- Loss of sexual function
- Mood swings
- Sleep disturbances
To qualify for compensation, your emotional distress must stem from a physical injury caused by the defendant’s negligence.
The “Per Diem” Method
Under the per diem method, which is used to calculate pain and suffering damages, a daily rate for pain and suffering is assigned. This daily rate is then multiplied by the number of days that the victim experiences pain. For example, if a daily rate is set at $300, and the victim suffers pain for 180 days, the calculation would be $300 X 180 = $54,000. Deciding on a fair daily rate can be a point of contention.
The Multiplier Method
With the multiplier method, the victim’s economic losses (like medical bills) are multiplied by a factor typically ranging from 1 to 5. For instance, if medical expenses total $30,000, and a multiplier of 4 is deemed appropriate, the pain and suffering amount would be $30,000 X 4 = $120,000.
It is important to remember that these methods serve as starting points for negotiation rather than fixed standards.
Evidence Used To Prove Pain and Suffering
Because pain and suffering are intangible, they can be challenging to prove. Common forms of evidence include:
- Testimony from family and friends about how the injury affects your daily life
- Your own testimony regarding your experiences and limitations
- Medical records and doctor’s statements
- Expert witness testimony on the nature and severity of your injury
- Prescription medications or medical devices you use to manage pain
- Photographs of your injuries or scarring
- Documentation of time missed from work or lost opportunities
Strong evidence helps paint a clear picture of your suffering. This can significantly influence the final compensation amount.
Future Pain and Suffering
If you haven’t reached maximum medical improvement (MMI) by the time you pursue your claim, you may face ongoing or even lifelong pain and suffering. Estimating future pain and suffering damages can be complicated. Proving this will often require expert witness testimony (medical professionals who can project long-term treatment needs, expected recovery times, and permanent impairments).
Since you only get one chance to recover damages, it is critical to include future pain and suffering in your claim.
Limitations on Pain and Suffering Damages
Certain rules and exceptions may apply when seeking pain and suffering damages in New York:
Car Accidents and the “Serious Injury” Threshold
New York follows a no-fault system for car accidents. Generally, you must first rely on your Personal Injury Protection (PIP) coverage for medical bills and lost wages. To seek pain and suffering damages from the at-fault driver, you must meet the state’s “serious injury” threshold.
Under New York law, a “serious injury” includes:
- Significant disfigurement
- A fractured bone
- Permanent limitation of an organ or body part
- Significant limitation of a bodily function or system
- Substantial disability for at least 90 days
If your injuries meet one of these criteria, you can step outside the no-fault system. This will allow you to pursue a liability claim against the at-fault party, including claims for pain and suffering damages.
Comparative Negligence
New York applies a pure comparative negligence standard. If you are partially at fault for the accident, your compensation will be reduced by your percentage of fault. For example, if you’re 20% at fault, you receive only 80% of your damages. This rule applies even to pain and suffering claims.
Workplace Injuries
If your injuries occurred on the job, you might be covered by New York’s workers’ compensation system. This system does not provide pain and suffering damages. However, exceptions exist if a third party (not your employer) contributed to your injury. In that situation, you could pursue a personal injury claim against the third party to recover your pain and suffering losses.
Pre-Existing Injuries
Insurance companies often argue that your pain and suffering stems from a pre-existing injury. Overcoming these arguments may require thorough documentation and expert testimony.
Speak With a New York Personal Injury Lawyer for Guidance
Since you have a limited time to file your claim, it is wise to seek legal help as soon as possible. A skilled personal injury attorney at O’Brien & Ford Buffalo Car Accident and Personal Injury Lawyers can help you understand your rights. We will evaluate your potential damages and negotiate effectively with insurance companies.
If you’re dealing with injuries caused by someone else’s negligence, don’t face the legal process alone. O’Brien & Ford Buffalo Car Accident and Personal Injury Lawyers can assist you in navigating New York’s complex injury law system. We will gather evidence to support your pain and suffering claim and fight for the full and fair compensation you deserve.
Contact our office today at (716) 222-2222 to set up a free consultation to discuss your next steps. We will listen to your story, answer your legal questions, and help you move forward with confidence.