Proving Pain and Suffering in a Car Accident that was NOT Your Fault

If you’ve recently been in a car accident in Durham, NC that was not your fault, and you’ve been injured, you may want to seek compensation from the at-fault party’s insurance company. This is called a “third-party claim,” and is best obtained with legal representation to maximize your settlement.  Insurance companies traditionally want to pay as little as possible but should compensate you for your medical expenses, any lost wages as well as some compensation for general “pain and suffering” if you can prove it. With that in mind, today we’ll define pain and suffering, how it is calculated and how you can best prove that you incurred pain and suffering in a car accident that was NOT your fault.

pain and suffering

What is “Pain and Suffering?”

Pain and suffering is a legal term that encompasses a broad range of injuries that a plaintiff may suffer from as a result of an accident. More simply put, it is defined as “the stress you experience from your injuries.” It often includes physical pain, emotional and psychological or mental trauma such as insomnia, fear, depressed mood, grief, worry, anxiety, inconvenience and the loss of the enjoyment of life.

In most personal injury cases, the plaintiff should be able to obtain some amount, for pain and suffering damages in addition to compensation for medical bills and lost wages.

How is pain and suffering calculated?

Pain and suffering are calculated in multiple ways depending on who is doing the calculation. Attorneys and insurance companies tend to use very different approaches. Many attorneys are trained to use two approaches to calculate pain and suffering.

Legal Approach #1:

The first approach attorneys may use 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 $5,000 in medical bills related to a broken arm, he might multiply that by three, and conclude that $15,000 represents a fair amount to demand for pain and suffering.

Legal Approach #2:

Another approach that the plaintiffs’ attorneys might use is the per diem (per-day) method. With this approach, an established amount such as $200.00 is assigned to every day from the day of the accident until the plaintiff reaches maximum recovery.

Insurance Approach

Insurance companies are under no obligation to use either of these legal approaches in calculating pain and suffering. In fact, many insurance companies use computer algorithms to determine the amount offered for pain and suffering. The final amount usually takes into account the type of injury as well as the type of medical treatment sought by the plaintiff.

For example, if the plaintiff sought treatment from a physician, the insurance company will usually consider that treatment to signify a more compensable injury than treatment by a chiropractor. They would also take into account the length of time the individual received treatment. Regardless of whether or not treatment was warranted, if the insurance company believes that treatment was excessive for the type of injury, the insurance company will not include all of the treatment in its calculation of pain and suffering.

Needless to say, calculating pain and suffering gets a bit complicated.

How Can You Prove Pain and Suffering?

Considering that pain and suffering can be calculated in multiple ways, but is ultimately determined by the insurance company, how can it be proven to an insurance adjuster? Documentation. Documentation. Documentation.

Your attorney will do his or her best to prove the extent of an injury and accompanying pain and suffering by providing evidence through documentation such as:

  • Photographs
  • Personal journals recording the victim’s physical and emotional stress since the accident in question
  • Proof of treatment by any mental professionals (necessary where the plaintiff is claiming injuries such as increased anxiety, insomnia, or depression) the victim has seen since the accident

Hire an Experienced Personal Injury Attorney

If you or a family member has been injured in an accident caused by another person, it is a good idea to consult an experienced personal injury attorney. Kevin E. Jones will tenaciously represent you and work to get you the maximum amount you deserve in Durham, NC. Call (919) 672-8330 for more information, or to set up a free case evaluation.