Missouri courts award three types of damages—economic, non-economic, and punitive Economic damages compensate for easy-to-count losses such as medical expenses and lost earnings. Non-economic damages compensate for intangible psychological losses. In Missouri, pain and suffering damages are equivalent to non-economic damages.
The Elements of a Pain and Suffering Claim
In Missouri, pain and suffering include:
- Physical pain and distress (abdominal pain or respiratory distress, for example);
- Mental anguish (psychological rather than physical pain);
- Loss of enjoyment of life;
- Emotional distress (PTSD, depression, etc.);
- Disfigurement; and
- Similar intangible losses.
Depending on the nature of your injuries, the amount of your compensation for pain and suffering could far exceed the amount you receive for economic damages.
Special Exception: Workers’ Compensation Claims
You cannot obtain pain and suffering damages for a workers’ compensation claim. Nevertheless, if you suffer a work-related injury, you might discover that a third party (not your employer) is liable for your injuries. In this case, you could file a lawsuit and seek pain and suffering damages.
Following are descriptions of the three main methods used to calculate compensation for pain and suffering.
Most insurance companies use computer programs to calculate the value of your pain and suffering damages. It may be sophisticated, but it isn’t fair. You can be sure that if an estimate comes from an insurance company, it will be low.
The Per Diem Method
Per diem is a fancy way of saying “per day.” Using the per diem method, you set a dollar value for each day of your suffering. Then you multiply that value by the number of days you suffered. The value of your suffering depends on its intensity.
The Multiplier Method
Under the multiplier method, you choose a number between 1 and 5 and multiply that by your economic damages. The more painful your injuries cause, the higher the number you should choose.
Calculating Future Pain and Suffering
Some accident victims make a full recovery before they even file a claim. Other victims face a lifetime of disability ahead of them. If you suffered a long-term injury, you might have several decades of pain and suffering ahead of you.
Unfortunately, you can’t keep filing claim after claim as your pain and suffering continue year after year. Your first claim must cover all of the compensation you will ever receive for your injury.
But how do you calculate the value of future pain and suffering? You will probably need a medical expert witness to testify about the long-term pain and suffering that your injuries are likely to cause.
Determining the Value of Your Claim During Negotiations
What happens at the settlement table mirrors what each side believes would happen if the case went to trial. You must convince the opposing party that you can win the amount of pain and suffering compensation you’re demanding at a trial.
Once the opposing party is convinced you can win at trial, they will likely issue an adequate settlement offer. The better your lawyer’s reputation for winning in court, the more likely this will happen.
Limitations on the Value of Your Pain and Suffering Claim
Insurance companies and defendants raise many different defenses against pain and suffering claims. Pain and suffering claims may also be subject to inherent limitations. See below for a list of some of these limitations.
The Causation Defense
To win a personal injury claim, you must prove that the defendant’s misconduct is what caused your pain and suffering. The insurance company, however, might claim that your pain and suffering were caused by something that happened before the accident (known as a “pre-existing injury”).
Suppose you suffered a back injury 10 years ago. If you are now claiming pain and suffering from a car accident that happened six months ago, the insurance adjuster might assert that your back pain was caused by your 10-year-old back injury rather than by the accident.
The Comparative Fault Defense
Was the accident that injured you partly your fault? Even if not, are circumstances such that it would be easy for the opposing party to argue that you are partially liable for the accident? If so, Missouri’s pure comparative negligence system kicks in.
Under pure comparative fault, a court will subtract your percentage of fault from your damages. If you were 15% at fault, you would lose 15% of your damages, including whatever damages you would otherwise have received for your pain and suffering. You can expect the opposing party to keep chipping away at your damages this way.
Failure To Mitigate Damages
A court will not award you compensation for pain and suffering you could have avoided through reasonable behavior after the accident. The opposing party won’t either.
Suppose, for example, that you failed to follow your doctor’s recommendations, thereby adding to your pain and suffering. If this happens, you will lose compensation for any losses, including pain and suffering, that you could have avoided. That doesn’t necessarily include all of your damages.
Insurance Coverage Limitations
No matter how much compensation you deserve for your pain and suffering, an insurance company is not obligated to pay you any more than its coverage limits. To know these limits, you need to read the policy carefully.
However, your lawyer might be able to find a way around these limitations. The most popular way to do this is to find a second defendant liable for your losses. Following are some examples of possible second defendants:
- The defendant’s employer, if the defendant was acting within the scope of employment when the accident occurred.
- The manufacturer of a defective product, if the product injured you and the defect caused your injuries. You don’t have to own the product.
- A commercial truck driver. Truckers are typically very well-insured.
- An on-duty Uber or Lyft driver. These drivers also carry a lot of insurance that applies only while they are on duty.
- A business. Businesses are typically well-insured.
Your lawyer might also find other defendants, such as a nightclub that sold alcohol to a drunk driver who injured you.
Proving Pain and Suffering
Since pain and suffering are intangible, how do you prove them? Following are a few popular ways:
- The seriousness of your injuries. The more serious your injuries, the more credible a large pain and suffering claim becomes.
- Your medical records. Medical records are very convincing to juries.
- Expert testimony: An expert medical witness can testify about the pain that your injuries are likely to have caused.
- Your journal: You should keep a daily journal that details your pain and the disruptions to normal life that your injury created.
- Your own testimony: How persuasive are you? Your communication skills could make a real difference here.
- The persuasiveness of your lawyer.
There are many more ways to prove the magnitude of a pain and suffering claim.
Juries in urban or cosmopolitan areas tend to award more pain and suffering damages than juries in rural areas. A jury might undervalue your claim, or a “runaway jury” might award you several times the amount of pain and suffering damages you expected.
You Probably Need a St. Louis Personal Injury Lawyer
If you are experiencing significant pain and suffering, your claim might be worth quite a bit. The more it is worth, the more you need a St. Louis personal injury attorney. Remember, you probably won’t need any money to hire a personal injury lawyer because their fees come out of the compensation the defendant pays you. If you still have questions, call (314) 444 4444 to contact a lawyer at Schultz & Myers Personal Injury Lawyers to see how much your case is worth.