If you have ever been injured, you probably know that both the injury itself and recovering from it can be incredibly painful, both physically and emotionally. What you may not know is that if you were hurt because of something that someone else did, you may be able to recover for your pain and suffering as part of a legal claim.
You may be wondering how exactly you can be compensated for your pain and suffering. After all, it isn’t easy to put a dollar figure on something like the pain that you experienced after shattering your leg in a vehicle collision (for example). While it definitely isn’t as straightforward as tallying up medical bills or lost wages, determining pain and suffering is very possible — and is often a key component of a personal injury case.
After any type of accident or injury, you may be overwhelmed by even the idea of filing a legal claim. Fortunately, you don’t have to go through the process on your own. A Washington, D.C. personal injury lawyer can help, from investigating the case to developing a claim for damages, to fighting on your behalf in the courtroom.
Types of Damages in a Personal Injury Case
Personal injury cases typically involve two types of damages or losses: economic and non-economic damages. In rare cases, punitive damages may be available as well.
Economic damages involve any type of loss that is readily converted to dollars. This may include property damage, lost wages, past and future medical expenses, and even reduced earning capacity. Your attorney will put together a claim for economic damages based on evidence of these losses, as well as statements from experts on issues such as how your ability to earn money in the future may be reduced by your injuries.
Non-economic damages include any type of loss that is not easily quantified in money. Depending on the facts of your case, you may be entitled to non-economic damages for pain and suffering, loss of enjoyment of life, disfigurement, and mental anguish. An attorney will use a variety of methods to develop a claim for non-economic damages, as described below.
Finally, in some cases, you may be entitled to punitive damages, which are meant to punish a wrongdoer and deter others from engaging in similar conduct. Because most personal injury cases involve negligence rather than intentional or reckless conduct, punitive damages are not often available. However, in some cases — such as a repeat drunk driver who crashes into you — punitive damages may be granted. But the conduct has to be a lot more extreme than mere carelessness to qualify for punitive damages.
Why the Law Recognizes “Pain and Suffering” as Important for Compensation
Before delving into the details, here is a good question: Why does the law require a defendant to pay for the victim’s pain and suffering, lost quality of life, and other kinds of damages that are hard to put a precise dollar number on? Why not just cover the easily ascertained numbers like medical expenses and lost income?
The answer is important because it goes to the logic of our entire system of “tort law” in the United States. That’s the law for personal injury claims. The law in all 50 states plus the District of Columbia says that if someone is injured by the fault of someone else, the injured person is entitled to be “made whole.” In other words, the law uses a monetary assessment against the guilty party to turn the clock back to what the victim’s life was like immediately before the injury. The law says that if the injury should not have happened, and occurred only because of the defendant’s negligence, then the damages are required to make up for, i.e., to compensate for, everything that happened to the victim because of the injury.
So if someone runs you over and causes a serious injury, would you be “made whole” if they just offered to pay 100% of your medical bills and your lost wages? Of course not. If you’re sitting in a wheelchair for the rest of your life or trying to cope with a brain injury that slows your thinking, or even if you’re dealing with a less catastrophic but still very real long-term loss of quality of life from an injury caused by someone else’s negligence, you are entitled to be paid for all of the harm that’s been caused to you, not just the harms with easy dollar signs attached to them. That’s why the law requires consideration of the intangible but important harms like pain and suffering.
Another important reason the law requires full compensation, including pain and suffering, is to encourage people to be more careful so that fewer of their fellow humans suffer preventable injuries. In the law, that idea is called deterrence. If we allowed careless truck drivers, for example, to pay only part of the harm that they caused, then “getting off cheap” would have the perverse incentive of encouraging more careless driving.
“Caps” on Damages in Some States
Some states have caps — or limits — on the number of damages that may be recovered in a personal injury case. While there are no caps on non-economic damages in Washington, D.C., and Virginia (in Virginia, for non-medical injuries only), Maryland limits the amount of non-economic damages that a person may recover in a personal injury case.
As of October 2019, the cap on non-economic damages in a Maryland personal injury claim is $875,000. This amount increases by $15,000 every October 1, so anyone injured after October 1, 2020, will be entitled to a maximum of $890,000 until the cap goes up the following October. For medical negligence, the cap on non-economic damages is slightly lower; as of January 1, 2020, that cap is $830,000. This cap also increases by $15,000 a year, but on the first of the year instead of October. In both medical and non-medical cases, the limit depends on the date of injury, not the date when the claim is filed in court.
Making Maryland even more complicated is that a different cap applies in a wrongful death case if there are two or more family members who have survived the deceased person and are eligible to make claims. In a medical negligence case, the combined cap for the survivors’ grief and the deceased person’s own suffering before they died is 1.25 times higher than the cap for a non-death injury case. This means that for a 2020 death by medical negligence claim, the cap for two or more claimants is $830,00 times 1.25 or $1,037,500. For any other kind of death claim (other than one caused by a medical provider), the two-claimant death cap is 1.5 times the injury cap. For a death claim when the death occurred between October 1, 2019, and October 1, 2020, the cap is $875,000 times 1.5 or $1,312,500.
Why do Maryland doctors and hospitals get the benefit of paying less for the same harm caused by a non-doctor or non-hospital? That’s a good question. Maryland attorneys who represent injured people — like the team at Patrick Malone & Associates — believe that the difference is unfair and discriminatory, but the legislature so far has listened to the medical lobby and given them the benefit of the lower cap.
In Virginia, doctors and hospitals (and other licensed health care providers like nurses) also have a limit on how much patients can recover against them. It is a combined limit for the entire case, not just the “non-economic” portion of the case as in Maryland. Virginia’s limit for injuries occurring between July 1, 2019, and June 30, 2020, is $2.4 million. Every July 1, the limit increases by $50,000.
Determining Pain and Suffering
In a personal injury case, there are two general types of pain and suffering that a person might experience: physical, and mental. A settlement or jury verdict for pain and suffering should address both types of losses.
Physical pain and suffering includes both the immediate discomfort that a person may feel after an accident as well as the pain that he or she is likely to suffer in the future as a result of their injuries. For example, if you were diagnosed with whiplash after a car crash, you will suffer physical pain immediately after the crash and while you are recovering. You may also have lingering pain in the future — possibly for years after you have technically “recovered” from whiplash.
Mental pain and suffering include any type of negative emotion or feeling of loss that a person may experience after an injury. This is often a result of whatever bodily injuries that a person has suffered. If you sustain a serious head injury after slipping and falling, for example, you may be dealing with a litany of cognitive effects due to a TBI (traumatic brain injury). Depression or anxiety as a result of the physical pain of an injury is a common condition as well. Injured persons may exhibit symptoms of post-traumatic stress disorder following a high-impact collision or a violent assault.
There is not a simple formula for determining the value of a person’s pain and suffering in a personal injury claim. Judges and juries do not have a chart to use to figure out how to apply pain and suffering damages. Instead, they typically rely on the evidence in the case — including the testimony of the victim, their treating physicians, and expert witnesses — to come up with a number for pain and suffering.
Most personal injury cases do not go to trial. In these situations, an amount for pain and suffering damages is negotiated between the attorney who represents the victim and the insurance company. This typically starts when a lawyer writes a demand letter, laying out the facts of the case, why the other party is at fault for the harm suffered, and detailing the damages that their client has suffered as a result.
Generally, personal injury attorneys determine pain and suffering damages using their own experience and knowledge of verdicts in similar cases. For example, if you suffered spinal cord damage after being involved in a motorcycle accident, your lawyer will look for similar cases in your jurisdiction to determine pain and suffering.
Some personal injury attorneys use what is known as a multiplier to put a value to pain and suffering damages. This multiplier is usually between 1 and 5; this number is then multiplied by a victim’s economic damages to come to a figure for pain and suffering. In a dog bite case, for example, if a victim suffered $100,000 in economic damages, the multiplier may be used to find that pain and suffering damages should be anywhere from $100,000 to $500,000.
Alternatively, the “per diem” approach may be used to calculate pain and suffering damages. In this method, your lawyer will pick an amount, such as $100, as the per diem rate. This amount is then multiplied by the number of days between the date of the injury and maximum recovery to reach a number for pain and suffering damages.
Whatever method your attorney may use, insurance companies may reject your proposed pain and suffering claim. Instead, the insurer will often use a computer program that factors in the injury, medical treatment sought, and other factors to determine an amount.
Consider a case where a woman named Mary was hit by a bus when crossing the street. She suffered multiple broken bones, internal injuries, and a concussion in the collision. Her injuries required hospitalization for 4 weeks, and many months of physical and occupational therapy after being released from the hospital. Mary achieved maximum recovery 12 months after the incident but still had some lingering long-term effects.
As a result of her injuries, Mary had difficulty sleeping and became depressed. She was also diagnosed with post-traumatic stress disorder (PTSD) and suffered panic attacks when outside of her home. These mental health issues are directly related to the injuries that she suffered in her accident.
Mary’s economic damages — including lost wages, medical expenses, and other losses — were determined to be $5 million. Using the multiplier method, pain and suffering damages may be anywhere from $5 to $25 million. If a per diem rate of $1,000 per day is used, then pain and suffering damages may be as low as $365,000 ($1,000 per day times 365 days).
This example shows how some methods are less useful in certain cases. This is where a Washington, D.C. personal injury lawyer’s experience comes into play. Based on similar cases involving injuries of this severity, an attorney can determine an amount for pain and suffering that reflects both the physical and mental anguish that Mary suffered after her bus collision, and then work to get a fair settlement from the defendant, or take the case to trial for decision by a jury. More importantly, your attorney will know exactly what strategies defendants and insurers use to avoid liability for your injuries and can fight accordingly to keep your rights to compensation intact.
In addition, your attorney will use their knowledge of the laws in your jurisdiction — such as caps on certain kinds of damages or the tax implications of receiving certain types of damages in a settlement — to help you achieve the best possible outcome for your and your loved ones’ long-term recovery.
Keep in mind, not every case is resolved through settlement. The insurance company may be reluctant to give you a fair settlement. In these situations, your attorney can file a lawsuit against the at-fault party and litigate your case before the court. In many cases, presenting your case to a jury can provide a better path to justice than relying on the generosity of a large insurance company.
What The Jury Is Told About Damages
If your case goes to trial, then your attorney will present evidence to establish the other party’s liability for your injuries as well as your damages. At the end of the trial, the judge reads the jury a set of instructions about how they should consider the evidence and reach a verdict. Most of these instructions come out of a book of standardized language set up to be as neutral and fair as possible to both sides of the lawsuit.
Below is the District of Columbia standard instruction on personal injury damages. Of the list of eight types of damages, the first five categories all concern non-economic damages for pain and suffering, loss of quality of life, and similar issues. The jury is not given any formula for how to calculate a fair result. That is up to their common sense as representatives of the community. Here is the instruction the judge reads to the jury just before they start their deliberations:
If you find that [Defendant’s] [negligence/wrongful conduct] caused [Plaintiff] to suffer injury, then you must consider whether [he/she] is entitled to any damages. You may award damages for any of the following harms that you find [Defendant’s] negligence or wrongful conduct caused:
1. the extent and duration of any physical injuries sustained by [Plaintiff];
2. the effects that any physical injuries have on the overall physical and emotional well-being of [Plaintiff];
3. any physical pain and emotional distress that [Plaintiff] has suffered in the past or may suffer in the future;
4. any disfigurement or deformity suffered by [Plaintiff], as well as any humiliation or embarrassment associated with the disfigurement or deformity;
5. any inconvenience [Plaintiff] has experienced in the past or may experience in the future;
6. any medical expenses incurred by [Plaintiff] in the past or may incur in the future;
7. any loss of earnings that [Plaintiff] has incurred in the past or may incur in the future; and
8. any damage or loss to [Plaintiff’s] personal property.
Your attorney will keep these instructions in mind when building a strong case for compensation for you.
Ready to Learn More? Contact Us Today.
Personal injury cases often involve more losses than those that can be documented with a receipt or bill. In a majority of cases, victims experience both physical and mental pain and suffering. Just as you can recover for tangible losses, such as damage to your car, you are also entitled to compensation for your pain and suffering.
At Patrick Malone & Associates, we represent people throughout Washington, D.C., Maryland, and Virginia who have been hurt in all types of accidents. We offer free initial consultations, and never charge a fee unless we recover money for you. Contact us today at 202-742-1500 or contact us online to schedule an appointment with a member of our team.