How do you put a price on your mental health? North Carolina has a set of guidelines to figure it out.
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.
Damages from pain and suffering are to compensate a victim for the loss of comfort, happiness, and opportunity that they endure after an accident or injury.
Types of damages for a North Carolina personal injury
If you were injured as a result of someone’s negligence, you can make a claim for special damages. These include:
- Medical treatment such as doctor and hospital visits, prescription medications, assistive devices, physical or occupational therapy, surgery or other procedures, and related expenses.
- Lost wages for the time that you were unable to work during your recovery, along with reduced future earning capacity.
- Property loss, such as damage to your vehicle.
General damages don’t have a specific financial value. These include:
- Pain and suffering
- Physical disability or chronic pain
- Lowered quality of life
- Loss of consortium
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):
Methods for calculating pain and suffering
North Carolina uses a couple of different methods for determining how much you can be awarded in pain and suffering damages.
The Multiplier Method
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:
Let’s say you were in a truck accident that left you with significant injuries including the loss of a leg and traumatic brain injury that require continuing treatment. You’re unable to work at the same job you had before the accident. If and when you return to work, it will be at a job that pays less than what you earned previously. You also were a semi-competitive tennis player and have been playing the sport since you were old enough to hold a racket. Because of the accident, you’ll never be able to play again. Lastly, you’re a single parent who’s raising 2 children.
Here’s how your economic (special) damages might break down:
- Medical expenses (current & future) = $1,500,000
- Lost wages (you were making a salary of $50,00 before the injury and would expect to work for 30 more years before retiring) = $1,500,000
- Related expenses (you had to make modifications to your home, including a wheelchair ramp, widened doorways, and other changes, as well as requiring assistance with child care, house cleaning, and shopping and managing daily activities for your family) = $700,000
Total special damages = $3,700,000
Your lawyer will negotiate the multiplier with the insurance company or defendant’s counsel.
Because of the severity of your injuries and their impact on your daily life, your lawyer is able to negotiate a 4 on the multiplier scale.
$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.
The Per Diem Method
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.
How to prove 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.
Proving pain and suffering is more challenging because you can’t count it the way you do with medical bills, for instance.
The North Carolina courts look at these factors to estimate the amount of a person’s pain and suffering:
- The severity of your injuries. If you were severely injured, particularly if you’re experiencing the loss of a limb or loss of organ function, your treatment costs will be higher and you likely experience more physical pain.
- Mental distress resulting from your injuries. You can experience anxiety or other significant mental health issues resulting from any accident, especially a serious one.
- The effect your injuries have on your daily life. If the accident has left you with a disability, or if it impacts your mobility or ability to work, take care of your children, or participate in activities that were part of your daily life prior to the accident, those losses are significant.
- The types of treatment you’ve received or are continuing to receive. If your injury leaves you with a continuing need for physical therapy, future surgeries, or any other treatment that your doctor expects will continue either for a period of time or for your lifetime, that will all be counted toward 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.
Keep a daily journal
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.
Post-Accident Journal Form
Sample accident journal/diary to help you document the effect on your daily life
Download in PDF format
Maintain medication receipts and pharmacy records or bottles
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.
Damage caps for North Carolina pain and suffering claims
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.
Pain and suffering damages in a North Carolina wrongful death lawsuit
Traditionally, a wrongful death claim has 2 parts:
- A survival action is a claim a survivor makes on behalf of the deceased person. It would include pre-death pain and suffering, medical bills, and pre-death lost income.
- A wrongful death action is a lawsuit brought by the family of the deceased person on their own behalf. This includes their own pain and suffering related to the loved one’s death, funeral expenses, and loss of economic support.
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.
An experienced personal injury lawyer can help calculate your pain and suffering
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.
You can use the Enjuris law firm directory to find a North Carolina lawyer near you who not only understands the law but who understands you and your needs, too. Pain and suffering is real. It can change your life, maybe forever. If you were injured by someone’s negligence, you deserve to be compensated for all that you’ve lost.
See our guide Choosing a personal injury attorney.