How pain & suffering may enter into your injury claim value
Whether you live in Texas or Timbuktu, as medical bills pile up in the months following an injury and you continue to experience pain and a dismal future, you can begin to wonder who will pay for all of it.
You know the other party was at fault, but now you're stuck with a set of questions you may have never thought about in your entire life.
It's easy to come up with a number for the actual costs of your medical care – the doctors certainly have no trouble throwing that math right at you.
You may wonder, however, how does anyone actually quantify the value of your pain and suffering? And is there anything particular to how Texas courts calculate pain and suffering?
Types of damages in an injury claim
Figuring out the worth of a settlement entails arriving at two sets of numbers for what the law considers to be two different types of injuries.
In Texas, as in most states, these two types of damages are known as special damages and general damages. In this case, the concept of special damages refers to specific expenses, such as clearly quantifiable medical bills, property damages and/or loss of wages.
Pain and suffering, however, falls under the heading of general damages.
General damages are typically harder to calculate because they don't lend themselves to a line-item approach.
With special damages, it's easy to state, for example, what the book value of a car lost in an automotive accident is.
The "costs" of your accident or injury:
- Medical expenses
- Earnings lost
- Pain & suffering - addresses the monetary value of being in pain or traumatized in the aftermath of an incident
- Mental anguish
- Physical impairment, temporary and permanent limitations on activity
- Loss of consortium
- Loss of services
While it might be easy to quantify the medical costs of losing a leg in that same accident, it can be challenging to assign a value to the actual suffering you've experienced from the loss.
Limits on personal injury lawsuit claims in Texas
The vast majority of personal injury claims are theoretically unlimited in potential worth. Texas uses a "clear and convincing" standard. This means that the proof of damages must be clear and be able to convince a judge or jury that damages being demanded in a claim are the damages sustained by the Plaintiff.
However, in the state of Texas there is one very specific exception. If you're attempting to pursue a medical malpractice claim, state law caps individual claims at $250,000 and combined claims among multiple defendants at $500,000. The law allows this to be indexed to inflation going back to 1977, so the current cap is now actually much higher.
In Texas, you only have two years following the date of an incident to initiate a claim, if other exceptions do not apply.
If you're pursuing a claim against a state agency or the government itself, you only have six months to start the process.
Keep this in mind, as failure to do so may result in your claim being flat-out denied with no compensation.
In Texas, as in most jurisdictions, the issue of shared fault can come up. According to the state of Texas, there's often a probability that both parties in a case may share blame for the incident.
For example, if a dog owner left a dog unleashed, that party shares at least some of the blame for an eventual bite.
However, if the person who the dog bit did something provocative and avoidable, that individual may be found to share part of the blame.
Additionally, blame can be further apportioned to third parties that may have been involved.
In Texas, if you as the person filing a claim share more than 50% of the blame, you are not entitled to any damages at all. The incident is viewed mostly as your own fault.
If, however, the other party's responsibility is determined to rise above 50%, then they're responsible for that portion of the damages.
So, a person who had the right to $20,000 worth of damages might only collect $15,000 if they were found to be 25% responsible for their own injuries.
What's meant by "pain and suffering?"
The foremost issue that's looked at when quantifying general damages is pain and suffering.
This is a broad term that tries, often poorly, to address the monetary value of being in pain or traumatized in the aftermath of an incident.
In this sense, a personal injury claim really does become personal to you.
For example, you may be able to undergo surgery to repair a ruptured disc in your back from a slip-and-fall accident. But paying the medical bills associated with the incident hardly compensates you for everything you've gone through.
The relative success of one injury claim versus another often hinges on documentation.
It's important to work with your doctors to establish how you have suffered. If you've suffered emotional trauma, it's critical to meet with a licensed psychologist or psychiatrist and document your suffering.
Calculating pain and suffering in Texas
Texas is a state that encourages the use of a basic multiplier for pain and suffering. The multiplier can range from one to five, and it corresponds to the severity of the harm done.(Is your injury considered catastrophic?)
For example, a cracked rib that healed well might only be considered a one. Conversely, serious brain trauma that prevents you from concentrating for any stretch of time might be assigned a five.
The multiplier is applied against the expenses from special damages to produce a value for general damages.
Bear in mind that the multiplier is a rough framework.
If a disfiguring injury, such as a deep facial scar, is cheap to fix, it doesn't mean that the 5x multiplier automatically caps damages in the low thousands of dollars.
When the framework fails to fully compensate a victim, there's no limit in Texas law that prevents you from pursuing a higher figure. The only limit is the insurance carrier's willingness to risk ending up in front of a jury trying to explain why a disfigured person deserves less money.
It's also important to be able to project some understanding of your future expectation of pain and suffering.
Once a settlement is concluded, that deal has to compensate you for the remainder of your life.
If your suffering is expected to subside with continued care, a reduced award may be in order.
Likewise, if you're likely to experience trauma for the rest of your life, it's important that you be compensated accordingly.
What's covered under "pain & suffering"?
A large range of needs are covered in this calculation.
If you have a back injury that severely limits your ability to engage in sex with your wife, you're entitled to compensation for the harm that can be done to your relationship by that.
If you've lost the ability to be a member of society in a specific fashion, such as doing work as a member your church, you can pursue compensation for that too.
In the state of Texas, this is broadly defined, but it also requires a clearly demonstrable physical injury. That means that you cannot claim an emotional trauma in the absence of a physical trauma done directly to you. A person who was hurt in an assault can claim emotional harm.
A person who was merely witness to one cannot bring a claim of emotional trauma.
What to do next
In the absence of a clear formula, the idea of pursuing an injury claim can seem daunting. The foremost thing you need to do is begin documenting everything:
Keep a journal that documents how you feel each day. This can be used as a reference when it comes time to negotiate a settlement or pursue a lawsuit.
Be honest. Don't attempt to goose the figures of your settlement by claiming suffering that didn't occur. Remember Texas' "clear and convincing" standard.
The lack of a clear damages calculation method can make it tempting to take advantage of the situation. Insurance companies are aware of this, and if they catch you lying they may decide to reject your claim and take you to court for presenting a fraudulent filing.
Get help. It's also wise to have counsel present early on in the process.
An attorney can help you figure out what needs to be documented and point you toward professionals who can help you demonstrate the pain and suffering that you're experiencing. See what a Texas personal injury lawyer does.
In the vast majority of cases, you'll be looking to settle with the responsible party's insurance carrier rather than going to court. This means you want to give the insurance company's lawyers and adjusters as detailed a picture of your suffering as possible.
Presenting a clear picture of your pain and suffering
More than anything, you want to be able to present a clear picture, both legally and medically, of what's happening.
Before you start the Texas claims process, ask a lawyer to help you.
The insurance company has counsel, and they're intent on protecting their interests.
With the support of your own attorney, you can see that your claim is presented in a structured manner that may allow you to pursue a settlement on more favorable terms.
See our guide Choosing a personal injury attorney.