You may have heard the term “pain and suffering” used in legal conversations, on television programs or by peers. This term is often used in discussions of personal injury accidents. Ever wondered what it specifically refers to, and how it is relevant in accident cases? Here is how pain and suffering is used in personal injury instances:
In general “pain and suffering” is just what it sounds like. It refers to the physical pain, and psychological and emotional suffering that a person often goes through when they’ve been injured in an accident. When that accident, and resulting injury, was caused by someone else’s negligent or wrongful conduct the law in Massachusetts allows you to recover damages for your “pain and suffering.”
It is useful to note that the amount of damages that you might be entitled to for “pain and suffering” is not subject to easy or specific calculation.
In injury cases the damages which a victim is entitled to recover are often divided into two categories:
- The first category is referred to as “special” damages, which can be objectively determined by mathematical calculation. It includes the amount of medical bills incurred for treatment of the injuries and lost earnings (including projected future medical expenses and lost earnings established by expert testimony).
- Pain and suffering can also be subjectively categorized by loss of enjoyment of life. The general nature and basis of this category is the attempt to make the injury victim whole for the suffering they have, and will endure due to the injury. There is no way to calculate these damages by a mathematical formula, although some insurance companies will attempt to do so applying their own, usually meager, formulas, i.e. “$500.00 per week for each week of ‘Total’ disability that resulted from the injury.
One significant benefit of the “subjective” nature of these damages is that it has led courts to the rule that because personal injury damages are subjective, and not subject to clear calculation, they are not taxable to the recipient. Thus an injury recovery will not be treated as taxable by the state or federal government
In fact, the courts have resisted this type of calculation of damages, and have usually prevented attorneys from suggesting “formulas’ to quantify these damages- “It would be fair to give my client $100.00 for each day she had to suffer pain due to her injury’”, will typically not be allowed by the court.
The result is that juries are generally allowed wide latitude in how they value “pain and suffering,” and the amount that they chose to award for damages. This means that hiring experienced attorneys that know the value of all elements of a damages claim, including fair treatment for “pain and suffering” is critical to your case. Most injury cases are negotiated to a settlement rather than going to Trial, but all insurers will base their settlement offer on the expected recovery range, if the case goes before a jury.
At O’Connor and Ryan, our attorneys have over 70 years combined legal experience, have extensive trial experience, and are fully prepared to maximize all aspects of the damages you are entitled to, including “pain and suffering.” We often receive full and fair settlement offers, without filing a lawsuit, because insurers are aware of our knowledge, experience and track record. However, if and when we need to go to court to secure a full and fair recovery for all aspects of your damages in an injury case, we are ready! Contact us for a free personal injury consultation today.