How to Calculate Pain and Suffering in Personal Injury Cases

Understanding Approaches to Calculating Pain and Suffering in NC Personal Injury Cases

There are three approaches used to calculate the value of general damages that are noneconomic, such as pain and suffering, and emotional distress.

1. The first method to estimate the value is simply to multiply the special damages, which are economic losses, such as loss of earnings, property damage, and medical expenses, by a multiplier, usually between 1 and 5. Depending on your case, the multiplier will vary, and will be higher if serious injuries are involved, or other aggravating factors, such as drinking or recklessness by the driver at fault.

2. The per diem method is the second way to calculate damages. A per diem argument asks the jury to award the plaintiff a certain amount for each year, month, week, or day of suffering since the date of injury, and includes future damages based on the plaintiff’s life expectancy. One way to calculate the per diem is to use a reasonable figure, such as daily earnings, and multiply that by the number of days of past and future pain to reach a lump sum.For example, to make a per diem argument, you assign a specific daily value to the plaintiff’s noneconomic loss, such as $10.00 per day. Then you multiply this amount by the number of days the plaintiff has experienced, and will continue to experience the pain, such as one year or 365 days. Thus, the pain and suffering in this example would be $3,650.00 ($10.00 x 365 days).

   Some jurisdictions do not allow per diem arguments at trial. However, both South and North Carolina do, e.g., Harper v. Bolton, 239 S.C. 541, 124 S.E.2d 54 (SC 1962); Thompson v. Kyles, 48 NC App. 422, 269 S.E.2d 231, discretionary review denied, 301 N.C. 239, 283 S.E.2d 135 (1980). However, in North Carolina, the argument must be accompanied by cautionary instructions from the judge to the jury, e.g., Weeks v. Holsclaw, 306 N.C. 655, 295 S.E.2d 596 (NC 1982).

3. The third approach to calculating damages is to convert the special damages into general damages. General future damages are ineffective. Be as specific as you can. Tie the future damages to a number to account for the injury, although sometimes that is difficult. For example, assume that an elderly lady is injured. Her medical bills are only $18,000.00, as the doctors treat her conservatively because of her age. Others testify about activities in which the elderly lady loved to engage before the accident. She loved to garden, and it will cost 10,000 per year to hire a gardener. She loved to walk, and joining a health club will cost $1,500.00 per year. She loved to cook, and the cost of eating out is $5,000.00 per year. If you calculate five years of these activities to compensate for the loss, then the special damages will be $82,500.00 ($10,000.00 x 5 years, plus $1,500.00 x 5 years, plus $5,000.00 x 5 years).

The insurance industry has been very successful in convincing the public that plaintiffs are playing the lottery. If the pain and suffering is subjective, then many believe that the plaintiff is dissembling to obtain more money. However, in certain circumstances, subjective injuries include objective symptoms, such as muscle spasms. Doctors will not perform invasive treatments or prescribe narcotics unless they are satisfied that the condition is real.

Putting the plaintiff on the stand to describe what s/he endured is a recipe for disaster. Therefore, it is best to find friends and acquaintances who can testify to the way in which the accident has affected the plaintiff. For example, in a head injury case, a store clerk might testify to the fact that, after the accident, the plaintiff could no longer count change. Although it might seem counterintuitive, the questions directed to these witnesses should focus on the way in which the plaintiff is trying to overcome his/her health problems, because in the United States, we like people who do not give up.

If you factor in age and health, then you obtain a different calculus. Younger people will have significant wage loss if they suffer permanent injuries. However, when you have something that is in scarce supply, you will value it more, and thus, older people will put more value on their time.

Seeking Legal Guidance for Pain and Suffering Calculations in North Carolina

If you are injured, and have questions about how to calculate your pain and suffering, you should contact a North Carolina personal injury attorney.