Compensation for accident injuries is awarded for both financial and nonfinancial losses. Financial losses include lost wages and out-of-pocket costs, including medical expenses, that are caused by another person’s negligence. Nonfinancial losses include pain, suffering, and emotional distress.
Past financial losses can usually be measured with precision. Future financial losses are based on estimates of the probable duration of a disability, estimated expenses of future medical care, and the loss of earning ability.
The dollar value of pain and suffering is less easy to quantify. While everyone understands the concept of physical pain, it is difficult to say what pain is “worth.” Lawyers aren’t usually allowed to ask jurors “How much would you want to be paid in exchange for enduring a lifetime of pain?” but even if the question were proper, twelve jurors would likely give twelve different answers.
It is even more difficult to place a value on emotional pain. Emotional distress damages provide compensation for mental anguish, anxiety, posttraumatic stress, depression, loss of enjoyment of life, and other emotional or mental harms. Some jurors may see a request for emotional distress damages as a sign of weakness while more empathic jurors may “feel the psychic pain” of an emotionally traumatized injury victim.
How, then, do personal injury lawyers calculate the economic value of pain and suffering? Experience and observation are the only calculators that lawyers can rely upon to determine the settlement value of a pain and suffering claim.
Justification for Pain and Suffering Awards
Insurance companies would prefer to limit damages to harms that can be measured. When an insured’s responsibility for an injury is clear, insurance companies are generally willing to pay those losses to avoid the expense of a trial. While insurance companies might not acknowledge that emotional distress has any value at all, they understand that the law permits juries to award non-economic damages.
In a sense, damages cannot compensate for pain and suffering. No award of damages can make the pain go away. The emotional pain that injury victims experience when they learn that they will never walk again, or that it will always be too painful to lift a child or grandchild, cannot be cured by money.
On the other hand, money can be used to make an injury victim’s life better. Money helps people live an easier, more comfortable life. An award of damages can’t eliminate pain, but it can offset suffering by improving the victim’s life in other ways. For that reason, American law has always recognized that compensation for pain and suffering is a fair and just component of an award of damages.
Tools for Valuing Pain and Suffering
In most injury cases, juries return a larger award for pain and suffering than they award for financial losses. Lawyers and insurance adjusters sometimes use a “multiplier” to calculate the value of noneconomic losses. They calculate the value of measurable financial losses, then multiply that value by a certain number to arrive at a dollar value for pain and suffering.
In routine cases where injuries heal completely within a few weeks or months, multipliers give lawyers and insurance companies a common basis for valuing claims. They help the insurance company and the injury victim arrive at a settlement value. Settlements save trial expenses and avoid the uncertainty of trial outcomes. To the extent that they promote fair settlements, multipliers can be a helpful tool in a personal injury lawyer’s arsenal. But as any craftsman knows, it is important to select the right tool for the job.
Personal injury lawyers and insurance adjusters often disagree about the correct multiplier to select. An insurance adjuster might want to multiply financial damages by 2 to arrive at the value of pain, suffering, and emotional distress. The victim’s lawyer might want to multiply financial damages by 5. In a routine case, they might split the difference and use a multiplier of 3.5. But that won’t make sense in every case.
Suppose Wendy has a back injury. After initial treatment, doctors gave her some stretching exercises and recommended daily use of a heating pad. They also told her that there is no further medical treatment that will relieve her pain. Since Wendy was not hospitalized and had no surgery, her medical expenses might be minimal. Yet Wendy is likely to endure years — perhaps a lifetime — of pain when she bends or lifts.
Now suppose that Fred has a knee injury. After initial treatment, doctors advised him about methods of rehabilitating the knee. They told him that he won’t be able to run or play basketball for at least nine months, but they expect him to make a full recovery if he allows the knee to heal without reinjuring it.
Wendy and Fred might have similar medical expenses, but Wendy has a more disabling injury that might be permanent. Wendy obviously deserves more compensation than Fred. If a multiplier is used to calculate pain and suffering, a larger multiplier will need to be used in Wendy’s case than in Fred’s.
No Formula Can Calculate Pain and Suffering in Every Case
If multipliers are not always the best tool for calculating the value of pain and suffering, how do lawyers make that calculation? Experience counts, as does awareness of jury verdicts in courts where the lawyer practices
No two cases are exactly the same, but seasoned lawyers keep track of how juries award damages in other cases. They look for cases that are similar. Then they make adjustments to account for ways in which the cases are different. For example, a client’s injury might be more or less severe than the injury that a jury considered in a similar case. The client might be more or less likable than the victim in a different case. Or the client’s background might make the client more vulnerable to emotional pain than the victim in a different case.
Experienced lawyers consider multiple variables when they compare a client’s pain and suffering to cases that went to a trial involving comparable accident victims. By using similar cases as a starting point, lawyers are able to predict how a jury is likely to assess their client’s damages. After making that prediction, personal injury lawyers can determine a fair settlement value for a client’s pain and suffering.