Pain and suffering fall under the umbrella of non-economic damages in California. The following are examples of pain and suffering:
- An extreme fear of being injured
- The psychological shock that comes from injuries suffered in a car collision
- Physical disability
- Physical pain
- Mental anguish, such as psychological trauma, depression, anxiety, distress or grief
- Loss of joy
- Loss of companionship
- Scarring or deformity
How Do You Prove Pain and Suffering?
In order to receive damages for pain and suffering, you will need to prove to the court that you are experiencing any of the maladies listed above. Pain and suffering is subjective, meaning that you cannot necessarily show others that you are experiencing distress because of scarring or a deformity, but you can provide objective evidence. For example, you may present X-rays as proof of broken bones. If you had to submit to several medical procedures, you may present these as well.
After a car accident, you may have had visits with physicians, physical therapists, psychologists and counselors. The notes from these professionals also demonstrate your physical condition to the court.
If your physical abilities have been diminished after the accident and you have a video of how you were able to move before it occurred, you can create an “after” video so that you can show the court how things have changed for you.
Expert witnesses are highly useful at this time. They give testimony in court that supports your claim of pain and suffering, inability to earn as much as you earned before and the injuries you sustained.
How Do You Calculate Payment for Pain and Suffering?
The insurance companies have formulas to calculate economic damages for clients with non-economic losses. One is the “multiplier” method, and the other is the “per diem” method.
The Multiplier Method
With the multiplier method, your attorney will add up all of the expenses that the car collision cost you. Then, they multiply this number by a figure between 1 and 5. The number they choose will depend on the severity of your injuries. For example, if you had a mild collision, your attorney may use a “2” as the multiplier, but if you have catastrophic injuries, your attorney may choose a “5.”
The Per Diem Method
The per diem method requires that you choose an amount of money for each day that you experience pain and suffering. This rate will be fixed, and your attorney may decide that your current salary is a good option for this daily amount.
In an example, we will say that you earn $100 each day. Your physicians determined that you will be in pain for the next 100 days. In this case, you would multiply $100 by 100 days, which equals $10,000.
Pure Comparative Fault in California
The pure comparative fault rule must determine non-economic damages in California. In this instance, if the court determines that you deserve 51% or more of the blame for the collision, you can still receive monetary compensation from the other party. For example, the court may have given you 70% of the responsibility for your collision. The jury may award you $100,000, but the court would reduce your award. Even so, you would still be entitled to receive $30,000 or the 30% fault that the other driver received.
Limits on Pain and Suffering in California
There are specific times when you cannot receive damages for pain and suffering in California. The first is if you were driving without insurance or were underinsured at the time of the accident. However, you will be allowed to receive compensation if the driver gets a citation for driving under the influence. If you were the one to receive the DUI citation, you would not be able to receive monetary compensation for the collision.
Martin Gasparian is the founder of Maison Law, a California Personal Injury Law Firm. Martin is a graduate of Georgetown University Law School and has been practicing law in California 2004. His practice focuses on helping injury victims know their rights and recover just compensation.
