With every injury, a victim undergoes a personal and subjective experience. There is no way for any of us to understand or objectively calculate another person's inner difficulties associated with an injury, and therefore no way to empirically or scientifically award exact monetary compensation for a victim's experience. In order to address this difficulty and the obvious need for compensation for unnecessary and life-changing trauma, the law provides a way to claim noneconomic damages in the form of “pain and suffering.” In most personal injury lawsuits, victims seek compensation both for economic and noneconomic damages.
Emotional pain and suffering specifically refers to the mental byproducts of physical injuries. Many subjective experiences fall into the category of emotional pain and suffering, such as
- The fear and anguish associated with the development of chronic pain conditions
- Limitations to or the loss of enjoyment of activities that a victim participated in before the injury
- Possible shortening of life
- Depression, anxiety, or the development of a mental disorder such as post-traumatic stress disorder (PTSD)
- Loss of appetite, energy, or sexual function
- Sleep disorders or insomnia
- Mental and social distress resulting from a sudden irreversible change in appearance such as scarring or amputation
- Intense feelings of shock, humiliation, sadness, or anger which can cause severe mood swings and strain the relationships that make up his or her support network
Even minor injuries can have devastating emotional effects on a victim and change their life forever. Therefore, noneconomic damages include not only current emotional pain and suffering but also that which is likely to continue into the future.
Calculation of Pain and Suffering
Pain and suffering claims fall under the umbrella of noneconomic damages. These claims are distinct from claims involving economic losses such as medical expenses, property damage, and future loss of income, which can all be calculated in a fairly straightforward manner using bills, mortgages, and current salary, among other tools which have been well-established in court.
Awards for pain and suffering, on the other hand, are notoriously unpredictable, with many factors affecting the jury's decision of how much to compensate the victim. Some of these factors include
- The seriousness of a victim's injury
- The estimated recovery time
- The prognosis for complete or partial recovery
- The extent to which the defendant can be clearly blamed for the injury, and the amount of responsibility that the injured party may have
- The perceived impact that the injury is having and will have on the plaintiff's life
- The victim's age, level of activity, profession, and, in some cases, gender
- How much objective evidence and expert testimony is presented which supports the victim's subjective claims
In general, the worse the injury, the higher the award will be for pain and suffering; however, sometimes less serious injuries can be deemed to cause more suffering that severe one. For instance, at first glance, a fractured leg seems more painful than a cut on someone's arm. For some, the leg injury would receive more compensation for pain and suffering. However, imagine that the person who injured their leg is a young woman with no other health conditions who recovers within a normal period of time, and whose doctor foresees no long-term health consequences. Furthermore, imagine that the person who suffered a cut to the arm is an 8-year-old girl whose physician testifies that she will struggle with nerve damage and the use of her lower arm for the rest of her life. The mental anguish that the child will likely face from her injury may garner a higher award.
Although there is a wide award range involved in emotional pain and suffering damage claims, there are general rubrics that attorneys and victims can use to estimate the amount likely to be awarded. One way is to tabulate the combined total of all economic or “special” damages, including past and future medical expenses and lost earning capacity and multiply that total by a certain number. This “multiplier” can vary, but usually, falls between 1.5 and 4. This means, for example, if a victim's total economic damages reach $10,000, compensation for pain and suffering associated with the injury may be anywhere between $15,000 and $40,000.
Another rubric used to calculate compensation for pain and suffering is the “per diem” approach, which uses a rate based on daily suffering to estimate the total amount over time. In order to use this method, a victim will need to show evidence of daily pain and emotional distress and associate a number with this figure. Sometimes, victims will use their hourly rate of pay prior to the accident to estimate a rate of pain and suffering. This method of calculation may work better for those who do not anticipate a lifetime of future pain and suffering, which can be harder to calculate on a day to day basis.
In Colorado, there are noneconomic damage caps or limits to the amount of compensation a victim can receive for the pain and suffering associated with their injuries. In 1986, Colorado passed a law limiting damages for pain and suffering to $250,000, or up to $500,000 is there is “clear and convincing evidence” that the increase is justified in a specific case. In addition, the law allows for adjustment of the damage caps over time, based on inflation. Therefore, the noneconomic damage cap for pain and suffering for injuries that occur after January 1, 2008, is $468,010 which may be increased to $936,030 upon justification.
There are generally no strict caps on economic damages or on damages for “permanent physical impairment.” Because of this, there may be ways to present pain and suffering so that it falls under categories which do not have caps, while still claiming the maximum possible amount in noneconomic damages.
Proving Emotional Distress in Court
Usually, proving physical pain goes in tandem with proving emotional pain since “suffering” is broad enough to encompass physical and mental pain. If a plaintiff is attempting to prove the emotional trauma associated with an injury, they will most likely need to describe the physical pain associated with everyday activities and how the injury has changed their ability to physically engage with the world around them.
Many defense lawyers will do all they can to downplay a victim's injury to the court or in the settlement process. Because of the inherent subjectivity and guesswork associated with pain and suffering, it is crucial to provide as much objective evidence to the jury to support your damage claims. Proof of emotional distress can come from a variety of sources. Whatever documentation a victim may have their mental state both before and after the event of the injury can usually be entered as evidence. Some examples include,
- Journal accounts of the victim's experience, including written diaries or computer documents
- Correspondence between the victim and his or her family and friends
- Videos of the victim living their life or engaging in hobbies or sports before and after the accident
- Photographs or scrapbooks depicting the victim's life
Accounts of the physical and mental struggle associated with the pain should also come from the victim's close friends, family, and co-workers who can testify as to the effects that the injury has had on the victim. It can be a successful tactic to let others speak for the victim. This helps to support the victim's subjective claims because it gives objective proof in the form of behavior, which others can observe, instead of feelings, which must be accepted or rejected at face value. Family members or friends who have witnessed sudden mood changes, a lack of interest in activities that the victim used to enjoy, or obvious signs of pain can share their observations. Co-workers can attest to the victim's productivity and engagement at work both before and after the injury.
In addition to witnesses who know the victim personally, it may be necessary to call in expert witnesses, such as the surgeon who repaired the damage done by the injury, and the family doctor who knows the history of the victim's health. If there has been physical therapy or counseling since the event, both of those professionals can lend their support to a victim's case by discussing their interacting with the victim since the event. In some cases, video footage of physical therapy can also be shown to demonstrate the victim's difficulty in recuperation and their dedication to recovering.
Effective Representation for Colorado Victims
If you are considering a personal injury lawsuit, experienced legal counsel can help guide you through this difficult time. At the Law Firm of Jeremy Rosenthal, we understand the mental anguish injuries can cause and will fight to get you the financial support that you need to move on with your life. Call us today at 303.825.2223 for a free consultation on your case or contact us online.