This question is extremely common for most car accident injury victims. Actually, I’d say it’s as common as the “How much is my case worth?” question.
Similar to the overall case value question, the answer is the similar–the pain and suffering calculation widely varies. First let’s look at what Texas courts have said. According to the court in Green v. Meadows, 527 S.W.2d 496 (Tex. Civ. App.—Houston [1st Dist.] 1975, writ ref’d n.r.e.), the amount of damages necessary to compensate for pain cannot be determined by a set formula.
The court in Hernandez v. Baucum, 344 S.W.2d 498, 500 (Tex. Civ. App. 1961), ruled that damages for physical pain are left to the sound discretion of the jury based upon their common knowledge and sense of justice.
So, we know from these two cases that there’s no exact formula to calculate pain and suffering. In addition, the court in Hernandez v. Baucum also stated that a jury may award zero damages when the pain is almost entirely subjective, based on the plaintiff’s personal reports of pain to doctors, supervisors and family members.
That’s why it’s important to have additional evidence of pain, which will be discussed below.
Two Common Methods For Calculating Pain & Suffering
Throughout your search online you will most likely find two common ways pain and suffering may be calculated: the “Multiplier” and the “Per Diem” methods.
The Multiplier Method calculates pain and suffering by multiplying the injured party’s total medical bills and lost wages, also known as “Special Damages,” by some multiplier, such as 1.5 – 5. With 1.5 being the least minor injury and 5 being the most severe injury.
This figure is then added to the Special Damages total. For example, if Paula Plaintiff has $5,000 in medical bills, $1,000 in lost wages, and she received minor sprains and strains in the car accident that was caused by Dexter Defendant, we may assign a 1.5 times Special Damages as her pain and suffering multiplier, or $9,000 ($6,000 x 1.5).
So, using the Multiplier Method, Paula’s pain and suffering would equal $9,000 and her total case value would be $15,000.
Per Diem Method
The Per Diem method is another method used to calculate pain and suffering in a car accident injury settlement.
The number of months, days, or hours are multiplied by a certain dollar figure that is either equal to the amount of pay the injured party receives in their job for that specific time period or some other arbitrary number.
For example, if Paula Plaintiff suffered pain for 200 days from the accident and made $200 per day as a construction worker, the pain and suffering calculation would equal $40,000.
The idea behind using a daily salary rate calculation as the daily rate of pain and suffering is that it could be thought that the pain associated with an injury is comparable to the effort of working a job.
Although the Texas court in Hernandez v. Baucum, 344 S.W.2d 498, 500 (Tex. Civ. App. 1961) ruled that it was a “fair argument and a rational approach for pain the way it was endured, month by month, and year by year,” in proposing a pain and suffering calculation to the jury at trial, it is not an accurate estimate of what the value of pain and suffering will be assigned in a car accident settlement.
The large misconception about these two methods is that insurance companies and juries actually use them to calculate pain and suffering. Simple answer: they don’t.
Although insurance companies in the past may have employed some sort of multiplier to calculate a rough estimate of an appropriate settlement offer in cases involving soft tissue injuries (e.g., whiplash), insurance companies now use settlement software such as Colossus to arrive at an appropriate settlement range, based on prior settlements, localized medical charges, and other claim characteristics.
If a case goes to a jury trial, juries are instructed to assign a sum of money that would fairly and reasonably compensate the plaintiff for the physical pain and mental anguish sustained in the past and future. Juries use their best judgment based on the evidence presented to them throughout the trial.
For a more in-depth discussion on how pain and suffering is calculated, click HERE.