How Do You Calculate Pain and Suffering?
It is very hard to accurately calculate pain and suffering. Anyone who tells you that they have a crystal ball or a magic formula that can predict the value of your personal injury case without even knowing the facts is a scam artist trying to pull the wool over your eyes. Why? Because your injury is personal. Any good personal injury lawyer will tell you that you cannot use a cookie-cutter formula for a unique claim unless you want a cookie-cutter low-ball settlement. There is no such thing as a personal injury calculator, a magic formula, or a pain and suffering calculator.
Why Do Attorneys Claim There is a Formula to Calculate Compensation For Pain And Suffering?
It’s very simple. It gets your attention. When the insurance company does not offer you the same amount as the pain and suffering calculator you found online says your case is worth, you are likely to:
- go hire the person who gave you the pain and suffering calculator to get that amount for you, or;
- accept a referral from them to a lawyer and they get paid a referral fee.
At the end of the day when they can’t get you what the magic pain and suffering calculator said your case was worth either, they explain to you why your case facts were “different” and “unique” and they collect their fee.
What Type Of Compensation Can I Get?
There are many factors to take into consideration when your settlement is offered. Below are some of the damages you can be compensated for.
- Medical bills and expenses
- Lost wages due to your injury
- Pain and Suffering
- Emotional Distress
- Damage to property
- Loss of potential income
Why is My Car Accident Settlement Offer So Low?
It is not uncommon to see people come in with a settlement offer from an insurance company that is well below the amount of the medical bills and say ‘I’m not trying to get rich, I just want a ‘fair’ settlement offer.’ In reality, there is no such thing as a fair settlement offer. What seems fair to you may be entirely different from someone else.
More importantly, insurance companies are not in the business of making ‘fair’ settlement offers. Sometimes the insurance company will even refuse to pay your medical bills after a car accident where their insured is obviously at fault. Remember, they are in the business of collecting premiums and settling claims for as little of the collected premiums as they can. Thus, the initial offer is always going to be a low offer. They don’t save money by giving away the farm.
How Do I Negotiate a Higher Offer?
Insurance companies are all about analyzing risk. The more risk a claim presents for them, the more they will pay to settle the case. So, if you want them to pay more to settle your case, you must make them believe that they have more risk.
Some of the factors that go into analyzing risk in a personal injury case are as follows:
- How clear is the liability?
- What are the documented losses vs intangible losses of the claimant?
- What sort of preexisting issues may have thwarted the healing process?
- How much will it cost the claimant to prove the case?
- Who is the insurance company?
- Any extenuating circumstances that might warrant punitive damages?
Identifying Liability Under Texas Law
Most people think they have an open and shut case. That is rarely the case in Texas. Under Texas law, liability for an accidental injury is assigned in percentages and apportioned between all parties. When you go to trial, the jury is typically asked two liability questions: “Which of the following person’s negligence, if any, caused the incident in question?” and “What percentage did each person’s negligence contribute?” If the percentage assigned to Plaintiff exceeds 50%, he recovers nothing. If it is less than 50%, the plaintiff’s total damages are reduced by that percentage. Thus, your settlement offer will be reduced by the percentage that the insurance company estimates will be assigned to you.
To understand what this means, you need to take into account the fact that all drivers, including you, have a duty to keep a proper lookout. It may seem cut and dry when another driver runs a red light, but if you did not look both ways and see the speeding driver approaching before you pulled out, your negligence may cause your damages to be reduced. Even in a rear-end accident, all or part of the responsibility can fall on the car that was rear-ended. When liability has room for argument, that will reduce the value that insurance companies place upon your case.
Documenting Tangible & Intangible Losses
There are tangible losses (such as medical bills and lost income) and intangible losses (such as physical impairment and mental anguish). Insurance companies never trust your word. They want to see evidence that you are hurt that does not come from you simply saying so. The more you can document your losses, the more likely they are to make a higher offer. Moreover, the more documented your losses are, the more likely a jury is to award those amounts if the case goes to trial.
Keep all medical bills and records, pay stubs, letters, or memos noting time missed from work, receipts for repairs, etc. Lost wages can be proven through your employer’s records or your tax records in most cases. Another thing that may help is to locate independent witnesses to your pain who can help you document what you are going through. Photos of scars, bruises, and other physical signs of injury are also important documentation. Estimates of future medical costs in writing can further enhance the offers you receive.
Preexisting Medical Issues
Insurance companies will often demand to see prior medical records. The reason for this is that they are trying to find evidence that the issues you are claiming existed before the date of the accident. While a defendant is liable under the law to compensate you for the aggravation of preexisting injuries, they are not liable for the preexisting injury itself. Understanding the difference can be very difficult for a jury. Insurance companies know this and will use it as an excuse to deny your injury claim. You need to be very careful about signing any type of medical records release. If the insurance company drafts it, the release may very well exceed what the law allows them to obtain. Beware that if you sign a release, their purpose is to try to find evidence to use against you.
Cost to Prove the Case
Cases do not go to trial for free. There are costs involved in every case. How much is determined by the type and complexity of the case. When liability is not clear, a liability expert may be required. This could be an accident reconstructionist or an industry expert. In cases such as a commercial trucking case, the cost of just the liability experts to analyze the data and conduct a forensic examination of the “black box” may run tens of thousands of dollars.
Additionally, medical expert testimony is commonly required in cases. The more extensive the damages are, the more expensive the expert tends to be. This is because a neurosurgeon’s fee to be an expert and testify tends to be higher than the fee of a general practitioner or a chiropractor. Insurance companies understand the costs that are involved and will use that to try to pressure people into lower settlements. They know which lawyers will go the distance and which ones will ultimately settle no matter what.
Know The Insurance Company
Another important factor in determining the amount of the offers you can expect is the identity of the insurance company you are dealing with. Some insurance companies are known to push cases all the way to trial. They may even use the tactic of driving up your cost of proving the case to force you to settle for less. They do this under the theory that by making the case cost-prohibitive now, lawyers will stop bringing people’s cases and the accident victims will be forced to accept whatever little offer they get.
Additionally, there are a number of cut-rate or nonstandard insurance carriers that drag cases out in an attempt to stall people into settling for less.
Extenuating Circumstances That Might Warrant Punitive Damages
A punitive damage award is difficult to obtain in Texas thanks to tort reform. You must convince a unanimous jury by clear and convincing evidence that the harm was the result of fraud malice or gross negligence. While difficult, this may be possible, particularly in the case of criminal conduct or severe cases of gross flagrant disregard for the health and welfare of others.
Insurance companies will always tell you they do not “consider” punitive damages in their offer. But when you have a clear case of DWI causing serious injury or flagrant gross negligence, they will consider it if you hit them with a proper demand letter. Furthermore, if they fail to consider it in an appropriate case, this is a good indication you need to file a lawsuit to get the full value of your personal injury case.
In short, many factors go into determining the value of a personal injury case. No pain and suffering calculator you find online is going to be accurate. None can tell you exactly what your case is worth except a jury. A qualified personal injury lawyer can give you an opinion as to what they think they might be able to settle it for or what a jury might award–but keep in mind that personal injury attorneys do not have a crystal ball. Don’t be fooled by the so-called ‘pain and suffering calculators” and “personal injury formulas” you see online.
page updated 2/16/2023