HOW IS PAIN AND SUFFERING CALCULATED IN MASSACHUSETTS
You have been injured in a car accident. You do some research and find out that you may be entitled to recover money damages for your injuries. You learn that you may be able to recover for your lost earnings from missing work as well as for your accident related medical expenses. You also learn that you might be able to recover for your "pain-and-suffering". You think to yourself, "I suffered plenty, my case must be worth a lot of money." You might be right but how is a dollar value for pain and suffering calculated and by whom? In this blog we will discuss how pain-and-suffering from a car accident is addressed by the people who matter; insurance company adjusters who may try to settle your case with you or a jury who may be asked to make an award for you for your pain-and-suffering if your case can’t settle and you must go to court. These two entities, insurance companies and juries, will often approach the calculation of pain-and-suffering quite differently which is one major reason why some cases can’t get settled out of court. So, it's up to your personal injury lawyer to ensure that every element of your pain-and-suffering claim is well documented and presented in the most persuasive manner possible and as early in the process as possible.
When Are You Entitled to Claim Pain-and-Suffering Damages from a Car Accident?
In Massachusetts, to be eligible to even present a claim for pain and suffering resulting from a car accident, you must have incurred at least $2000 in reasonable and necessary medical expenses as a result of your car accident related injuries. Like every rule however, there are exceptions. The exceptions to this $2000 threshold requirement are as follows:
- The claim is being made for a person who died in the accident;
- Loss of a body part (in whole or in part);
- Permanent or serious disfigurement (in whole or in part);
- Loss of sight or hearing;
- Fracture (including teeth).
How Does Massachusetts Law Define Pain-and-Suffering Damages?
It really doesn’t. The law does not spell out how pain and suffering damages should be quantified. When we try a car accident case in court in front of a jury, the judge at the end of the trial gives the jury an instruction in an attempt to help them calculate pain and suffering damages. In one recent case we tried to a jury the judge gave the following instruction:
“Pain and suffering are of two types: physical pain and suffering and mental pain and suffering. For physical pain and suffering, you are to consider the areas of the body in which you find the plaintiff physically injured. You are to take into account the past pain and suffering endured by the plaintiff since the date of the injuries, the present pain and suffering caused by the injuries and any future pain and suffering which were proved with reasonable medical probability. Mental pain and suffering includes any and all nervous shock, anxiety, embarrassment or mental anguish resulting from the injury. Also, you should take into account past, present and probable future mental suffering. Taking into consideration the nature of the injury, you are to determine what would be a fair and reasonable figure to compensate the plaintiff. You may consider the extent to which the plaintiff's injuries have caused [him/her] a loss of pleasures which [he/she] otherwise probably would have had in the form of work or play or family life or whatever. The plaintiff is entitled to full compensation for any reduction in the enjoyment of life which you conclude has resulted or probably will result from this accident. To arrive at a monetary figure for the plaintiff's pain and suffering, you must use your own good sense, background and experience in determining what would be fair and reasonable figure to compensate for past, present and future suffering such as you find has been proved by the evidence.
How’s that for clarity and guidance? As you can see there isn’t much in the way of guidance on how to value a person’s pain and suffering. It is left to the common experiences and common sense of the jury to put a value on a person’s pain.
How Do You Maximize Your Chances of Obtaining a Fair Recovery for Pain and Suffering?
Now it should come as no surprise that insurance companies seldom agree with you on the value that should be attached to your pain and suffering claim. They see so many injury claims that many insurance adjusters have become jaded. They must be persuaded that your claim is meritorious and that you are not just another person looking for more than they deserve. So how do you convince an insurance company or jury to value your claim fairly? Great documentation, preparation and presentation are the key.
The first and most important step in making certain that our clients are fairly compensated for their pain and suffering is to make sure we have documentation that supports our position. We rely heavily on the following types of documentation:
- Medical records and bills
- Prescription records
- Photographs and/or videos of injuries and client rehabilitation
- Work records such as missed time, light duty designations etc.
- Testimony from family, friends and expert witnesses to describe the effects of the injury that they have observed
- Pain and Suffering journals (we often ask clients to keep a journal that we provide to them to contemporaneously make note of symptoms such as pain, sleep disruption, limitations in function, feelings of sadness, anxiety or depression etc.)
Our client’s story (whether told through written correspondence by the attorney to the insurance company, or at a trial, deposition, mediation or arbitration) is the most powerful element in recovering a fair pain and suffering award. The client is almost always in the best position to adequately convey what they have gone through and it is the attorney’s job to help capture, articulate and present that information in the most persuasive manner possible. The skill and experience of your personal injury lawyer is critical in maximizing this often-fuzzy element of damages. You literally have to make others “feel your pain” which is a much harder task than it sounds.
So, choose your attorney carefully. The best thing you can do if you are injured in a car accident and want to be fairly compensated for your pain and suffering is to understand your legal rights before you make any decisions. Before you speak to an insurance company adjuster, sign or submit any paperwork or hire a lawyer, you owe it to yourself to get as much information as you can, so you can make a smart decision on what you need to do next. At Spada Law Group, we offer free consumer guides and videos that answer many of the questions car accident victims have. Take a look, download our free information or contact us for a free consultation. Learn what Spada Law Group is all about and how we might be the right personal injury lawyers for you and your case.