Figuring out the value of an injured person’s general damages claim- what is often referred to as pain and suffering–is the most difficult part of valuing a case This is true whether you are talking about settlement or thinking about the jury’s task in setting the amount after trial. We have discussed the various things for which an injured person can receive compensation in other posts. Economic losses like lost income or medical expenses are part of the overall claim. Though they present their own issues, they are relatively less difficult to evaluate
When talking about pain and suffering damages it is important to remember they are two separate things. Pain refers to the physical discomfort arising from a physical injury. Suffering refers to the mental experience of the injured person.
There is no chart, no graph, no table, no formula that a jury an attorney or an insurance company can look at in reaching a conclusion. Every person, every claim, every injury, every incident is different and requires independent evaluation. There are many things that can come into play and need to be taken into account when deciding the appropriate money compensation a claimant should get for their pain and suffering.
The subjective evaluation by the jury or insurance company in evaluating that compensation includes things like:
- The credibility of the witness;
- The age of the injured person;
- The location of the claim or lawsuit (Boise is not San Francisco);
- Whether injured claimant’s actions were consistent with what would be expected from a person in pain (seeking medical care, etc.);
- The physical look of the injury (are there x-rays or scars that look bad?);
- The existence of other or pre-existing injuries;
- The manner the injury occurred;
- How their everyday activities changed because of the injury;
- Their expressed tolerance for pain;
- What do they do for a living;
- Their family situation and living arrangements;
- How good they are as a trial witness;
- Who their supporting witnesses might be;
- Where they live and how the injury affects lifestyle;
- The scope of needed medical care;
- The cost of the medical care; and,
- The skill level of the attorney in presenting a case.
Every single case is different. Every one of these issues, whether independently or in concert with the others, creates the overall picture the jury and insurance company will use in evaluating the appropriate monetary compensation for pain and suffering in a particular case. In addition to all those factors in any case, settlement numbers are also based on evaluation of past jury verdicts of cases with analogous claimants/ injuries/situations and/or medical expenses.
Ultimately settlement values reflect what the parties perceive is a likely outcome if the case went to a jury. When the values perceived by the claimant and the insurance company are similar, settlement can usually be reached without difficulty. When, for whatever reason, those values are far apart, cases go to trial for that jury evaluation.
The knowledge and skill to evaluate this aspect of an injured person’s claim is one of the important things having a skilled and experienced attorney provides an injured claimant.