Compensation for Pain and Suffering in Motorcycle Accidents
By Chuck Koro, Russ Brown Motorcycle Attorneys
Pain and suffering sounds pretty gruesome, but this element of damages is frequently the largest portion of the award or settlement in a personal injury case. There is no formula for putting a dollar amount on pain and suffering damages, also referred to as general damages and non-economic damages. Some suggest that calculating pain and suffering damages is possible by following the multiplier method. That is, by multiplying the medical bills by three and then subtracting the medical bills. In other words, proponents of this method believe that the value of the case is three times the medical bills plus loss of earnings. Others use the ‘per diem’ method: that is, that there is a value that can be placed on the amount of suffering per day of treatment necessary to restore the victim’s physical and mental health to what it was prior to the accident.
While an award or settlement may sometimes end up fitting into this formula, it simply does not work as a method to calculate damages. Evaluation of general damages has to be analyzed on a case-by-case basis. For example, an injured party may be rushed to the hospital and undergo multiple diagnostic studies, incurring medical expenses of $20,000, even though the party only sustained superficial injuries. Clearly, the case is not worth $60,000. On the other hand, at Russ Brown Motorcycle Attorneys we have settled many cases where the medical treatment bills were far less than a third of the final motorcycle accident settlement amount.
What is Pain and Suffering in Motor Vehicle Crash Claims?
In terms of motor vehicle accident claims, pain and suffering is something of a nebulous term. It breaks down into physical and mental pain and suffering.
- Physical pain and suffering is the pain and discomfort caused by the plaintiff’s physical injuries as a result of the accident. It can also take into account any chronic or reoccuring effects that are likely to be suffered in the future due to the accident.
- Mental pain and suffering concerns the anguish, distress, and other complex and harmful emotions and mental processes undergone as a result of the accident. Some of these effects can be directly caused by physical pain and suffering, such as the link between chronic pain and depression. Sleep disturbances, mood swings, fatigue, PTSD, sexual dysfunction and more all falls under the umbrella of mental pain and suffering, and it can take into account chronic or ongoing conditions caused by the accident, too.
These conditions are considered to be distinct from medical expenses, though there is little structure in a courtroom for how juries should appoint compensation to a plaintiff claiming them. Amounts can vary depending on factors beyond the plaintiff’s control, such as how likeable they are seen to be by the jury, their credibility and consistency, their medical and criminal records, and more.
How is Pain and Suffering Calculated in a Motorcycle Accident?
General damages are assessed by generally looking at the physical pain, mental suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation, and emotional distress. These categories may vary somewhat from state to state. The more serious the injury, the greater the damages. The best way to evaluate general damages is by looking at the effects of the accident on the injured party’s life, physically and mentally. This includes the experience of the accident itself, the accompanying emotional and mental effects relative to the traumatic events that ensue such as being taken by ambulance to the hospital, the anxiety of not knowing the full extent of the injuries, the actual physical pain, the time that it takes to recover and the residual effects.
Other residual consequences that affect general damages are disability, impairment, permanent scars, the potential need for future surgery and the concern about financial well-being if the injury has affected the person’s ability to perform his job as he did before the accident. Sometimes the injuries dramatically affect the person’s relationship with his spouse which also should be factored into the equation. Some people are so affected by a serious accident that they suffer post-traumatic stress disorder and have to seek psychological help. As you can see, it is important to get across the gravity of these effects and residual problems to the other side so that you can be fully compensated.
One important tenet of the law to be aware of is that the defendant has to take the plaintiff as he finds him. This means that if a person was more susceptible to mental and emotional trauma and suffered more than an average person, that person is still entitled to recover for the suffering he endured. This applies to physical injuries as well. The analogy often used is if an older person who has osteoporosis falls and breaks a hip due to someone else’s negligence, that person is still entitled to fully recover for the injuries and related damages, even if a younger, healthier person would not have sustained a fracture in the same accident.
On the other hand, you can hurt your case by going overboard to the point where the injury’s claimed effects seem disingenuous. One person recently claimed that his entire life was ruined because of a broken finger. While there may be situations where this might occur such as an established artist who can no longer paint or a professional athlete who can no longer compete, the average person’s life is not going to be ruined by a broken finger. Trying to sell that to an insurance company or defense attorney would be difficult, if not impossible, and is likely to hurt the plaintiff’s case by damaging his overall credibility.
It is important to take the time to analyze how the accident has affected not just your lost wages, but all aspects of your life., This can include activities of daily living such as getting dressed, showering, and performing general chores around the house, job related activities and sports, recreational and social activities. By thinking through all of the details, you will help your lawyer increase the value of your case.
Russ Brown is a motorcycle accident law firm with over 45 years of experience aiding motorcycle accident victims with getting a fair payout for the pain and suffering caused by their accidents. We offer free consultations to all motorcycle accident victims. We look forward to discussing your case with you and pointing you in the right direction.
Russ Brown Motorcycle Attorneys — russbrown.com; 1-800-4-BIKERS