When discussing legal settlements, you’ve probably heard the phrase “pain and suffering” many times. Although this phrase may be used extensively, few people fully understand the exact legal definitions and how they impact a settlement for pain and suffering.
Pain and suffering can be a blanket term that encompasses various types of specific injuries that a plaintiff has suffered due to the fault or negligence of another party.
There are also many different ways a person can be injured in a way that may not be physically apparent. These can include certain emotional traumas or the inability to perform daily functions. All of these examples of injuries can be sustained and classified as pain and suffering.
In this article, we will break down the various types of pain and suffering that can lead to financial recovery from those injuries. We’ll also look at how the amount of a settlement for pain and suffering is calculated.
What is a Pain and Suffering Lawsuit?
A personal injury lawsuit is when a plaintiff seeks financial compensation due to injuries caused by another party. Someone may file legal claims for damages based on pain suffering, such as negligence, assault, or reckless endangerment. Although there is no specific “pain law,” there are methods for determining a financial value for compensation.
The injuries do not have to result from an intentionally malicious act. For example, injuries caused by negligence are often part of personal injury cases and can result in financial settlements for pain and suffering.
An important component of pain and suffering settlements in a legal context is that it doesn’t just cover the immediate injury and aftermath. Instead, future pain or the inability to perform certain activities after the injury is also part of the claim.
So even if the injury suffered was not considered “painful” in the general sense, if that injury prevents the person from performing or enjoying future work or personal activities, then it is indeed a form of pain and suffering that can warrant financial compensation.
Below are some common types of physical injuries that can qualify for pain and suffering claims.
- Broken bones
- Fractures
- Back injury or pain
- TBI (traumatic brain injury)
- Sprains
- Dislocation
- Nerve damage or loss of feeling
It’s important to remember that this is just a small sample of common physical injuries that fall under pain suffering. However, physical injuries can also lead to emotional injury.
For example, if a physical injury to the brain results in changes in behavior or mood that last after the injury, those can also qualify as emotional injuries.
Emotional injuries are harder to quantify than physical injuries but may have more lasting damage. Problems arising from emotional injuries can last a lifetime, which can have an impact on the amount of compensation for such injuries. Many emotional injuries can also prevent one from enjoying normal activities as they did before the accident.
This type of injury then becomes more important when determining how much a personal settlement case may be worth.
Below are some common emotional injuries that are found related to pain and suffering claims
- Fear
- PTSD
- Psychological trauma
- Anxiety
- Depression
- Diminished quality of life
- Grief
Unfortunately, because emotional injuries are not always as apparent as physical ones, there is a perception by the public that they might not be as severe. However, this couldn’t be further from the truth. Emotional injury often has negative ramifications for the victim long after the physical wounds have healed.
Thankfully, our courts understand this all too well, and emotional injuries are compensated just as physical injuries are. In some cases, these emotional injuries are the most compensated.
Loss of Consortium
There is a third type of injury under pain and suffering that is known as loss of consortium. This is separate because it’s a case brought by the living family members of a victim that has died as a result of their injuries.
Cases involving loss of consortium can be brought by family members or a spouse of the victim. Because of this, these cases have different types of compensation related to things such as lost wages due to the victim’s death or loss of companionship.
A loss of consortium claims doesn’t exclude other types of expenses that can still be compensated for due to the accident or injury. For example, if the victim had to undergo expensive medical treatment but ultimately died, these expenses can still be part of the overall claim. The loss of consortium can be in addition to other expenses that resulted from the accident or injury.
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Non-Economic Damages in Pain and Suffering Cases
It’s important to understand that within pain and suffering settlements, there are economic damages and non-economic damages to be considered.
Sometimes this can be confusing since both types result in financial compensation. However, the difference is in how they are each calculated.
For example, if you received a medical bill for a visit to an emergency room as part of your accident or injury, the amount of that bill would be considered an economic damage. It would be easy to calculate the amount of that bill, and damages can be anywhere between the exact amount or some multiple of the amount. This multiple amount is something we’ll touch on later.
However, things like the emotional injuries we listed earlier or loss of consortium are much more difficult to calculate. This means there is often no ceiling to these types of injuries when it comes to settlements.
Because of this, emotional injuries can often lead to higher compensation as it’s impossible to truly compensate someone financially for certain losses which cannot be calculated with simple arithmetic.
How Pain and Suffering Settlements are Calculated
Many victims of accidents or negligence often want to know how much compensation is possible for various types of injuries. This is a legitimate question and is usually asked because the victims want to be sure that reliving their trauma during court proceedings will be worth the resulting financial compensation.
Thankfully, pain and suffering claims can provide substantial compensation for victims. But exactly how much can be difficult to determine. This is partially due to the fact that every injury and circumstance is slightly different. The lasting impact of an injury may be different for different people. However, there are some guidelines that courts and even jurors use as a baseline to determine compensation amounts.
Below we’ll look at the two most common ways compensation is decided.
Multiplier Method
As we’ve discussed earlier, some economic injuries are easier to calculate, such as medical bills or lost wages. These actual losses can be added up after the victim has undergone treatment and any therapies necessary following treatment.
These totals are then multiplied to get the total amount of compensation. The amount is generally in the range of 1.5 to 5 times the actual damages. The severity of the injury dictates the range. So a more serious injury may have a higher multiplier than a less severe injury. However, other factors can also play a role in this calculation, depending on the specific circumstances of each case.
An example of this would be if the total medical expenses and lost wages combined were $50,000. A starting point for negotiations or deliberations may set a multiplier of 3, which would be $150,000 total compensation for actual damages.
It’s also important to note that this amount would be in addition to the bills and expenses being reimbursed. The reason for this is the reimbursement of the original medical bills simply makes the victim whole when it comes to out-of-pocket expenses.
So even though the expenses are used as a calculation, the bill amounts and the final settlement based on them are separate amounts.
For reference, the multiplier method described above is the most common method when discussing lawsuits for pain and suffering.
Per Diem
Per diem is a Latin phrase that translates to “per day.” As the name suggests, this calculation method looks to assign a per-day amount that tracks the time from the accident to the point of recovery.
This method can be tricky, so it is used less often. It’s also only appropriate for more minor injuries with minimal lasting effects. More severe injuries are far too challenging to set a recovery timeline for. Often, many injuries are never fully recovered, making a per diem calculation inappropriate for many types of physical and emotional injury claims.
Estimated and Typical Payouts for Pain and Suffering Claims
It’s important to note that when filing a claim for pain and suffering, the amounts can vary drastically from case to case.
So while the average may be in one range, cases can be many times that amount if the injuries warrant it.
With that being said, based on insurance data, the typical pain and suffering compensation is often between $15,000 – $25,000. On the surface, this may seem low, but a few caveats must be considered with this data.
First off, most injuries are minor, which is a good thing. Many claims of personal injury are for minor injuries that the victim fully recovers from after a short period of medical treatment. Because this is the majority of injuries, the average compensation amount is lower.
For example, a car accident that results in minor injuries but none lasting is a very common occurrence. So these make up the majority of claims.
This is why victims need to be wary of various calculators or estimates. These methods can’t know the actual severity or lasting impact of your injuries. Your specific case may be worth considerably more than the average.
Ultimately, only your lawyer and medical professionals can determine these aspects of your case.
This is why discussing your case with an attorney is always essential before accepting any compensation or offer. Some insurance companies may try to take advantage in some cases where the victim may not know the true severity of their injuries and what they may be worth in compensation.
Factors That Influence Settlements
We’ve touched on the factors that go into calculating certain compensation amounts when suing for pain and suffering. Now, we want to discuss specific factors that influence those amounts.
Below are some of the most important factors when determining pain and suffering law.
Severity of the Injury
This tops the list as the severity of the injury has the most influence over pain and suffering lawsuits. A minor injury that can be fully recovered from will generally see much less compensation than a severe injury with lasting debilitating effects.
Besides the lasting impact, more severe injuries almost always have higher treatment costs. This is both true initially and ongoing as the person tries to heal over time.
If any of these injuries cause a lifelong or permanent disability, these will generally be the most compensated of all claims. The reason is that the injury and suffering may last a lifetime, meaning any financial compensation must address that level of severity.
Amount of Medical Treatment Needed
Similar to the severity, the amount of medical treatment needed is a critical factor for determining pain and suffering.
If an injury requires one or two medical visits and then a follow-up visit, the amount of compensation will generally be much lower.
Injuries that require extensive treatment or surgery will typically be compensated at a much higher rate. This is why it’s always important to follow the advice of your doctors after an injury and follow through with any treatment they suggest.
This not only helps you achieve a better medical outcome, but it also more truly represents your injury, making it easier to determine the correct amount of pain and suffering to compensate for.
Impact on Quality of Life
This aspect touches on the lasting effect of the injury and how it interferes with your daily life or activities. This also takes into consideration whether the injury prevents you from working.
Some things that are considered are the victim’s ability to enjoy activities they enjoyed before the injury. These can be anything from work-related activities to hobbies.
These can also be relationship-oriented as well. For example, an injury that prevents someone from enjoying various aspects of interpersonal relationships can also be a consideration.
The Degree to Which You Contributed to the Accident
The amount that this factor can influence pain and suffering claims can vary from state to state. However, if you are found to be partially at fault for a specific accident, this can reduce the amount of compensation.
In certain states, this doesn’t mean you can’t recover any compensation for pain and suffering, even if you are found to be partially responsible or liable.
Some states have a cutoff for this level of responsibility. For example, if your responsibility is found to be over 50%, this can mean that no compensation can be sought. But once again, this can vary from state to state.
This area of law is known as comparative negligence and can be pretty complicated. As mentioned, it can vary quite a bit from state to state. So it’s important to consult with a lawyer in your state to determine if this applies to your specific case.
Pre-Existing Injuries
The next factor that can significantly influence pain and suffering claims is whether or not the victim had any pre-existing conditions related to their current claims of injury.
For example, if the victim already had a pre-existing back injury, this may influence how much they can seek by claiming a new back injury.
The reason for this is that the opposing party can argue that a portion or all of the injury existed before the accident.
However, this doesn’t mean that having a pre-existing condition makes it impossible to receive compensation for similar injuries. It does complicate the matter, but you are still entitled to fair compensation if it can be proven you sustained new injuries.
Examples of Pain and Suffering Settlements
Some of the above technical explanations may be difficult to fully understand as they involve various legal concepts best left to professionals. So it may be good to include real-world examples when clients sue for pain and suffering.
Below, we’ll cite two examples to better clarify how the process can work.
Essure Class Action Lawsuit
Essure is a birth control device manufactured by Bayer AG under the subsidiary Conceptus.
The device was sold and marketed as a much less invasive alternative to tubal ligation, a method of birth control to prevent conception.
Despite being FDA-approved, women who had undergone the Essure procedure started to complain of lasting side effects.
Some of these complaints included:
- Perforations in the fallopian tubes
- Severe pain and bleeding that was persistent
- Unintentional pregnancies
Not soon after those complaints, lawsuits started to be filed by patients who were seeking compensation, some of which were for pain and suffering due to the procedure and the lasting complications afterward.
In the end, the makers of Essure settled a class action lawsuit for $1.6 billion. This money was divided among members of the class action lawsuit and other individuals.
In this case, some of the injuries fell under pain and suffering and were considered severe due to their lasting complications. For example, damage to the reproductive system may result in the inability to give birth. As we discussed earlier, such an injury that prevents someone from participating in normal life activities can lead to very high settlement amounts.
This was likely part of the reason the settlement in the Essure case was so high, as many of the pain and suffering claims were quite severe, with lasting effects on patients’ lives.
Johnson & Johnson Lawsuits
Johnson & Johnson was named in a lawsuit over their talcum powder products that were alleged to contain a dangerous substance known as asbestos.
Many of the victims named in these cases claimed that they were diagnosed with cancer after using the talcum products made by Johnson & Johnson.
This was an extremely complex case and one that involved several factors. However, the pain and suffering of those named in the lawsuit were key factors in the high settlement amount that resulted from the lawsuit.
Such a severe diagnosis, such as cancer, has extremely high treatment costs and lasting effects. As mentioned in this article, these are all things that lead to higher compensation or settlements if they can be proven to result from negligence.
As you can see, it was important to understand that the previously cited average compensation amounts of around $15,000 can be misleading.
As we’ve seen in the Johnson & Johnson case and others, settlements and compensation can go into millions or even billions of dollars. Much of this amount is due to the pain and suffering of the victims needing to be compensated.
These cases further illustrate the wide range of compensation amounts that are possible. Only by discussing your specific case with a lawyer can you determine how much compensation you may be entitled to for any pain and suffering you’ve endured as the result of a negligent party.
More Information on Pain and Suffering Lawsuits
If you’ve been injured due to another party’s negligence, it can be difficult and stressful for you and your family. You may be dealing with physical injuries as well as emotional injuries that you don’t fully understand yet.
During this time, it’s critical to speak with a qualified attorney. Directly after an accident or injury, you may not think clearly enough to make the best financial decisions for yourself and your loved ones.
At Oasis Financial, we understand the burden that pain and suffering can cause for victims of accidents and negligence. That’s why we offer various financial services to assist those seeking legal compensation. If you’re looking for answers to questions like, “How are personal injury settlements paid out?” we are ready to guide you through the process.
Contact Oasis Financial or apply today to learn more about our financial services that can help victims of accidents and negligence achieve the peace of mind they deserve.
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Oasis provides pre-settlement funding, also known as consumer litigation funding, to its customers through different products depending on their state of residence or cause of action. Many consumers will be provided pre-settlement funding in the form of a purchase agreement, which assigns a portion of the pending proceeds from their legal claim. Other consumers, such as those in SC and CO will be offered a funding in the form of a pre-settlement loan, sometimes referred to as a lawsuit loan. These transactions have important differences, therefore, consumers should carefully review and be aware of the type of transaction that is offered to them by any funding company.