“Pain and suffering” damages in a personal injury case are some of the most well-known types of money damages. Pain and suffering damages cover the mental and emotional distress caused by an accident, an injury, or factors closely related to the accident or injury, like scarring.
Unlike other kinds of actual damages, pain and suffering damages are not always easy to calculate since they are rarely based on black-and-white evidence such as hospital bills or pay stubs. However, pain and suffering are included in the category of “actual damages” or “compensatory damages” because they are directly caused by an accident and are part and parcel of what the injured person suffers.
Pain and suffering damages may include, but are not limited to, money amounts to cover:
- residual or chronic pain,
- physical or mental limitations, like difficulty walking after a leg injury or difficultly remembering things after a head injury,
- depression, embarrassment, or other emotional responses to the accident or the injury,
- depression or other emotional responses to the loss of mobility, paralysis, or disfigurement.
The specific experiences that pain and suffering damages cover will depend on what the injured plaintiff experienced in her particular case. For this reason, courts and juries usually consider a long list of factors when trying to determine how large an award for pain and suffering is appropriate. Some of these factors, but not all of them, include:
- how severe the injury is,
- what kinds of medical treatment the injured person needed,
- whether complications happened due to the injury or treatment that needed additional care,
- how long the plaintiff needed to recover,
- whether the injuries or any results, like disability or scarring, are permanent,
- how the injury is expected to affect the rest of the injured plaintiff’s life, including whether or not the injured person can go back to work or enjoy hobbies she used to enjoy,
- the injured person’s mental and emotional responses to the injury and its results.
Damages for pain and suffering should not be confused with punitive damages. Pain and suffering damages arise from the injury itself, and are therefore available to nearly any injured plaintiff. Paying them is part of a negligent defendant’s responsibility in restoring the plaintiff to the position she was in before she was injured. Punitive damages, on the other hand, are imposed by a court to punish a defendant who was a particularly bad actor. While a plaintiff may endure additional pain and suffering if a defendant’s behavior is particularly heinous, punitive damages are intended to punish the defendant, not to repay the plaintiff. Therefore, if punitive damages are awarded, they are usually awarded on top of any damages the plaintiff receives for pain and suffering.
Pain and suffering amounts may also be included in an insurance company or other party’s settlement offer. Different insurance companies use different methods of calculating the amount they will offer for pain and suffering. The factors an insurance company may use to set a pain and suffering offer amount include those used by juries, or the company may use a pre-determined formula based on the amount of the medical bills or other payments the company is responsible for.