It’s normal (and expected) to feel strong emotions after an accident or injury. Even if you were in a minor car accident and weren’t physically injured, it’s natural to feel shaken up, afraid to drive or experience other kinds of anxiety afterward. Often, these feelings become less over time and you’re able to resume your regular lifestyle with little impact or interruption.
But if you were seriously injured, the emotional impact might be greater and last longer. The purpose of tort law (which includes personal injury) is to make a plaintiff financially whole again. In other words, it’s intended to restore you to the financial condition you’d be in if the injury hadn’t happened.
Calculating costs for medical treatment, lost wages, and other special damages might require the expertise of a lawyer, accountant, or other medical or financial experts, especially if your injuries are serious or will require future treatment.
But how can you put a financial value on your emotional state?
The courts have 2 methods for figuring out how your pain and suffering factors into the rest of your costs based on the severity of your injuries and the length of time it’s expected you’ll need to recover.
If you were injured as a result of someone’s negligence, you can make a claim for special damages. These include:
General damages don’t have a specific financial value. These include:
There are 2 types of pain and suffering: physical and mental.
|Physical pain and suffering||Mental and emotional pain and suffering|
|Examples include (but aren’t limited to):
||Examples include (but aren’t limited to):
North Carolina uses a couple of different methods for determining how much you can be awarded in pain and suffering damages.
There’s a scale from 1 to 5 that’s generally used to calculate pain and suffering. If your injuries are very severe, like spinal cord damage, brain injury, or amputation or disfigurement, then you’d multiply the amount of your economic losses by a higher number like 4 or 5. If your injuries are likely to fully heal or are less serious, you might multiply by 1 or 2.
Sometimes, the equation will look like this:
$3,700,000 x 4 = $14,800,000
This might sound like a huge number — and it is. But when you consider a lifetime of costs related to medical treatment for a serious injury, compensation for lost wages, and additional expenses like child care and extra assistance, it adds up fast.
If you’ve made a full recovery (or are expected to), you can calculate pain and suffering damages by multiplying a set amount by the number of days in which you suffered. In other words, your lawyer might negotiate that your pain and suffering cost you $100 per day for your recovery time, which was 3 months. That would mean you’d expect to receive about $9,000 in damages for pain and suffering.
Proving the amount of special damages you’re owed might take a lot of work and calculation, but it’s really a matter of adding up the expenses you already owe and using actuarial tables (and other metrics) to determine the expenses you’ll accrue in the future.
The North Carolina courts look at these factors to estimate the amount of a person’s pain and suffering:
Only you can demonstrate this evidence of pain and suffering to the court. When a plaintiff’s attorney is presenting evidence for a car accident, for example, they might rely on proof from accident reconstruction such as photographs, weather reports, witness testimony, and other forms of evidence that you never even see for yourself. But since pain and suffering is wholly based on your personal experience, you’ll have to provide the evidence.
Here’s what you can do to prove that you deserve damages for pain and suffering:
It’s crucial that you share whatever you’re experiencing with your medical provider and your lawyer. Even if it seems embarrassing, intimate, or private, it can be important to your case. There could be aspects of how you’re thinking or feeling that might indicate anxiety, grief, or depression without your realizing it. If you’ve experienced changes in any part of your lifestyle, particularly with respect to eating, sleeping, or your energy level or overall happiness, you should make sure your physician is aware.
If you’re experiencing emotional distress, a counselor or therapist can help. You can ask your doctor for a referral to a mental health professional who specializes in what you’re going through. Your counselor will document the pain you’re feeling without violating your confidentiality.
It’s important to keep track of how you’re feeling, both physically and emotionally. Because damages are based on both physical and emotional pain, note in a journal the date and how you’re doing each day. This should also include if you’re taking any medications and, if so, how much of each.
Medication receipts and pill bottles can provide evidence of how much and how often you’re taking them. If you’re taking pain killers, antidepressants, or anti-anxiety medication, it’s important to note when you need them.
North Carolina doesn’t limit pain and suffering damages, except for medical malpractice cases. A 2011 law established a $500,000 cap on pain and suffering (non-economic damages) in a medical malpractice lawsuit.
The exception to the $500,000 cap is if the court finds that the defendant was reckless, grossly negligent, fraudulent, intentional, or malicious in causing the plaintiff’s serious injury or death.
Traditionally, a wrongful death claim has 2 parts:
North Carolina law §28A-18-2 joins these claims within a single lawsuit or cause of action. You can recover costs for the deceased person’s pain and suffering. You can also recover for your own pain and suffering based on the loss of services, protection, care, and assistance the deceased person would have provided if they had lived.
Calculating pain and suffering is complicated — no one can deny that. What’s more, North Carolina’s negligence laws can be unfavorable to plaintiffs because if you had any liability for the accident or injury — even a small amount — you can’t recover anything at all.
That’s why a good lawyer is your best ally if you need to recover damages.