What Exactly Is a “Pain and Suffering” Award?

In a personal injury case, the injured individual is eligible to seek damages for their injuries and losses through the court system. What this means is that you, as the victim, can request financial compensation for expenses relating to your injuries, like medical bills or time lost from work. You may also have heard about pain and suffering awards. But how does the court calculate monetary awards for damages that are difficult to quantify?

Damages in a Los Angeles personal injury case

You may seek several different types of damages and compensation in a personal injury case. These can include:

• Medical expenses
• Lost wages and future ability to work
• Property damage
• Pain and suffering

The first three are relatively simple to calculate, as they are tied to specific bills and financial information. Pain and suffering, however, is different. It includes both the physical and emotional injuries to an individual after an accident. Anyone who has ever suffered an injury understands the toll of physical pain. The emotional effects of a serious injury can also affect an individual for a long time.

Some of the injuries that may qualify a victim for pain and suffering damages include:

• Burn injuries
• Amputation injuries
• Car crash injuries
• Defective product injuries
• Spinal cord injuries
• Traumatic brain injuries

Injuries like these, especially when caused by negligent acts, in addition to physical pain, can also cause emotional distress. Depending upon the severity of the injury and the circumstances of the victim, pain and suffering can be as debilitating as the physical injury. Signs of pain and suffering can include:

• Behavioral and emotional changes
• Changes in sleeping patterns
• Cognitive difficulties
• Depression and anxiety
• Diminished quality of living
• Fear
• Grief and anger
• Post-traumatic stress disorder

Taking the incalculable and turning it into financial compensation is a complex process, and an experienced personal injury attorney can help ensure you are compensated properly.

Can you seek pain and suffering in a wrongful death claim?

You can now. As of January 1, 2022, a personal representative of the deceased may seek pain and suffering damages in a survival action.

In California, two types of lawsuits may be brought against a wrongdoer who negligently, recklessly, or intentionally causes the death of an individual. There’s the wrongful death lawsuit, which is filed on behalf of the family to recover damages for their own losses. This has always included pain and suffering damage claims. The other type is the survival action, which is filed on behalf of the deceased’s estate. Typically, this only included tangible, economic losses that the deceased would have been entitled to receive if he or she were alive to file a personal injury lawsuit, and potentially punitive damages.

In October 2021, Cal. Code Civ. Proc. § 377.34 was revised. The amended statute reads:

(a) Except as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person’s death, but survives subject to the applicable limitations period.

(b) This section applies even though a loss or damage occurs simultaneously with or after the death of a person who would have been liable if the person’s death had not preceded or occurred simultaneously with the loss or damage.

This change recognizes that victims often suffer pain and/or disfigurement in the time from their injury until the time of their deaths, and that their estates should be able to claim these as part of the damages. The change also allows certain parties to ask for an expedited trial – namely, survivors who are older than 70 and in poor health.

There is currently a sunset provision for this new statute, so it applies only to survival actions filed between January 1, 2022 and December 31, 2025.

How is pain and suffering calculated?

There are two common methods for determining pain and suffering.

• Multiplier method. With the multiplier formula, the court will take the calculable part of your award (like medical bills and lost wages) and determine your pain and suffering by multiplying that amount by a number. Usually this number is between one and five, and the more serious your injuries, the higher the number. An example of this would be if you were awarded $10,000 in damages and the jury assigned a multiplier of three for your serious injuries. This means your pain and suffering award would be $30,000.
• Per diem method. The per diem method involves assigning a dollar amount to each day you have been injured. Then, the jury multiplies that number by how many days your pain and suffering continued, or how long they believe it will continue. A simple example of this would be if you were hurt in a car crash. The jury assigns $200 to each day you were injured, and it took 100 days for you to heal completely from your injuries. Your pain and suffering award would be $20,000.

Do note that everyone’s situation and healing time is different. Your attorney can help you build a strong case, however, to ensure you receive the compensation you deserve for your injuries.

The goal of a personal injury claim or wrongful death claim is to make the victim whole again – and that is what the Los Angeles attorneys at McNicholas & McNicholas, LLP intend to do. We fight for your right to proper compensation, including pain and suffering. Contact us at your convenience to talk to us about your case. To set up a free case consultation, please call 310-474-1582 or use our contact form to leave us a message.

Please note that this blog is not to be construed as legal advice. Because every case is fact-specific, you should consult directly with an attorney to obtain legal advice specific to your situation.