There are two types of damages available to you after an auto accident: actual damages and pain and suffering.
One of these, the actual damages, is relatively easy to get after a car accident. It covers any out-of-pocket expenses that are straightforward to claim. Medical bills, prescriptions, ambulance rides, and other clear-cut spending comes from these claims.
The other category of damages isn’t a guarantee in a Massachusetts personal injury case. Pain and suffering can be an arbitrary number and is often difficult to prove. You can’t get them without making an excellent case for yourself.
As a result, pain and suffering damages vary significantly between cases.
How do you calculate pain and suffering? Keep reading to see how much your claim may be worth.
Pain and Suffering Claims: What, When, Why and How
Pain and suffering is a legal term that refers to the type of damages not reflected in your medical bills. It can include physical pain, but it also offers damages for invisible injuries that often follow auto accidents. These injuries include:
- Loss of enjoyment
It’s disproportionately challenging to put a number on these invisible injuries. As a result, it’s easy to inflate the value of your claim, which can result in rejection.
Generally, there are two commonly used methods to calculate pain and suffering (exclusively): the per diem and multiplier method.
Per Diem Method
Per diem refers to a daily rate, and both insurers and attorneys used it to provide you with a set amount of money for each day that you experience pain and suffering.
Often, your daily rate reflects your income.
If you earned $250 per day before your car accident, but you had to take time off, follow a daily regimen for pain, and struggled to sleep for 100 days after your accident.
You could then calculate your pain and suffering to be $250 x 100 days for a total of $25,000.
The per diem rate can also be arbitrary, particularly if you went to work after your injury.
Whatever you choose, you must be able to justify it to a judge and jury. A personal injury lawyer in New Bedford, MA can help you make this calculation and come up with an explanation.
The multiplier method uses your actual damages (medical bills, lost income, etc.) and multiplies them to calculate your approximate pain and suffering.
It’s a reasonable method because severe injuries come with higher medical bills and greater levels of lost income. As a result, severe injuries often occur with more (or more tangible) pain and suffering.
The multiplier method previously involved multiplying your actual damages by three.
If your actual damages were $10,000, then your pain and suffering could be $30,000.
The primary issue with the multiplier method is that the principle of “multiply by 3” is increasingly scrutinized by insurance companies and courts. After all, they ask, why is the number three the magic number? Is it fair to apply it to all cases?
Instead, insurance companies now look for the multiplier method as approved by a software program. As a result, the new multiplier might range from one to five, depending on:
- The severity of the accident
- Aggravating circumstances
- Required medical treatment vs. undertaken medical treatment
The last criterion (required vs. undertaken treatment) is particularly important for personal injury claims.
A previously standard method for increasing pain and suffering was to ‘over-treat’ injuries to raise the claim value. For example, you might use physical therapy, chiropractor care, and specialized pilates to care for a minor neck injury and improve your actual damages and, therefore, your pain and suffering damages.
Insurance companies increasingly no longer recognize those treatments as part of a pain and suffering case. You could find yourself out-of-pocket for those claims, notably if you participated in what insurance companies consider to be excessive treatment.
Claiming Pain and Suffering in MA as a No-Fault State
Massachusetts is a no-fault state first, which means your first port of call is your own insurance company. Your insurance pays for the first $8,000 of your actual damages regardless of the circumstances, otherwise known as first-party benefits.
To get pain and suffering damages in MA, you rely on third-party benefits. These cover your non-financial losses (not medical bills or lost wages immediately after the accident) when you prove a reasonable level of fault. Here’s how it works.
The Minimum Threshold for Third-Party Benefits
Receiving third-party benefits requires you to file a claim against the driver deemed to be “at-fault” in the accident. You also must demonstrate a “threshold injury,” which usually requires:
- Impairment of bodily function(s)
- Serious disfigurement
Typically you must prove that you experienced:
- Broken or fractured bones
- Limb amputation
- Permanent hearing/vision loss
- Permanent serious scarring/disfigurement
- Medical expenses above the $2,000 (which get submitted to your health carrier)
Minor injuries, such as those from fender benders, tend to get thrown out.
Who is at Fault?
Massachusetts uses a modified comparative fault system. In addition to claiming the first $8,000 from your own insurance company, you must prove that you can only ask for pain and suffering if you show you claim less than 50 percent of the fault.
You should have already proved fault before you reach the point of filing a claim. Filing a police report at the scene and submitting your request to your insurance company initiate the process.
The fault then informs your claim.
Let’s say you claim pain and suffering based on the multiplier method by submitting $10,000 work of damages times three for $30,000 damages. However, you were 25 percent at fault in the accident. That means you can claim up to 75 percent of your damages.
Seventy-five percent of $30,000 is $22,500 and represents your maximum claim.
Make Your Claim
Were you severely injured in a car accident and believe you deserve compensation for pain and suffering? You may be entitled to more money depending on your injury and who was at fault in the accident.
A Boston injury lawyer can help you determine what your pain and suffering claim is worth and justify the amount you seek. Click here to read testimonials from clients just like you.
Attorney Peter M. Goldberg is the founder of and managing partner at Goldberg & Weigand, LLP, and has been in private practice since 1986. He takes pride in the fact he deals directly with his clients on a daily basis working to get their cases resolved to the fullest extent of their rights. Peter practices personal injury law and workers compensation law in Massachusetts.