In a personal injury lawsuit, the victim is entitled to be “made whole” by the at-fault party. However, reimbursing the injured person for medical bills, lost wages, and property damage does not erase the trauma of the accident. Therefore, Texas law allows for the additional payment of damages for pain and suffering.
What is ‘Pain and Suffering’?
Pain and suffering can be divided into two broad categories: physical and emotional. Physical pain is a straightforward concept and occurs to some extent with every injury. Although it is hard to measure, physical pain is generally assumed to increase with the severity of the harm.
Emotional suffering refers to a broad range of feelings, including the initial fear and shock of an accident as well as residual effects of trauma, such as insomnia, anxiety, or flashbacks. Emotional suffering may also include sadness or depression associated with long-term disability.
How Is Pain and Suffering Calculated in Texas?
While economic damages like medical expenses are easy to calculate, pain and suffering losses in a personal injury lawsuit are subjective and difficult to quantify. In Texas, there is no set formula to determine the value of an individual’s pain and suffering lawsuit settlement. Instead, a judge or jury will decide based on several factors, if the case goes to trial.
With regard to physical pain, the judge or jury will examine the type of injury and how long the pain persists. A clean broken bone, for example, may be very painful at first, but recover quickly. A spinal injury may cause chronic pain for years (pain and suffering damages can also be awarded for expected future pain in the case of long-term injuries). When victims sue for pain and suffering, the jury will review medical evidence, listen to testimony, and may rely on personal experience when estimating the appropriate valuation of a victim’s pain.
Emotional suffering is determined based on the circumstances of the accident, and whether (and to what extent) the injured party required therapy or mental health treatment in the aftermath. It also takes into account the length of the recovery period, and what consequences the victim may have to endure.
How Do I Prove Pain and Suffering?
At trial, pain and suffering must be demonstrated with proper documentation. Typically, medical records are the primary proof when it comes to physical pain, as they describe the nature of the injury. Medical records include any and all surgeries and follow-up doctor’s visits, rehabilitation and physical therapy, and prescribed pain medication. Treatment notes from mental health providers will also go a long way towards demonstrating any emotional distress caused by the accident or resulting injury.
Other evidence of pain and suffering may include pictures of the injury, firsthand testimony, and statements from the victim’s loved ones regarding the accident or its aftermath.
Pain and Suffering Settlements
Most personal injury lawsuits do not go to trial but are resolved through out-of-court settlements, in which potential pain and suffering damages should be taken into account. Insurance companies look at the same evidence as the court when assessing pain and suffering damages, but their goal is to minimize payouts. Although there is no fixed method for calculating pain and suffering settlement amounts, many pain and suffering cases are resolved using the total of economic damages (medical bills, lost wages, etc.) as the starting point. Therefore, it is essential to have all your ducks in a row when negotiating payment for pain and suffering with an insurance company. In most cases, this means having an experienced personal injury attorney in your corner.
Consult with a Knowledgeable Personal Injury Attorney in Texas
If you have been injured in an accident, an experienced Houston personal injury attorney can help evaluate your case and determine what compensation may be available, including pain and suffering payment. For over 35 years, Attorney Richard Schechter has helped personal injury victims get what they deserve from personal injury cases, through skilled negotiation and aggressive advocacy at trial.
Contact us today to schedule a free consultation.
