How are Pain and Suffering Damages Calculated?

In Florida, “pain and suffering” can include the following elements:

• Pain and other forms of physical suffering;
• Any resulting disability or physical impairment;
• Mental anguish;
• Inconvenience as a result of any disability;
• Post-traumatic stress disorder (PTSD);
• Anger and fear;
• Insomnia;
• Grief;
• Cognitive changes; and

Loss of enjoyment of life.

You must suffer physical injury to qualify for any of the above-listed benefits. You should address each of these issues separately during settlement negotiations.

Not all pain and suffering claims are created equal. Some forms of pain are more severe than others.

The following factors go into determining the magnitude of your pain and suffering claim:

• The severity of your injuries.
• The length of your recovery period.
• The impact of your injuries on those around you, such as your family.
• The type of medical treatment you received or will need in the future.

You should also keep a “pain journal” and record your suffering in detail on a daily basis. This journal can add details to your claim, thereby enhancing its credibility. 

How do you prove a pain and suffering claim? Following are some forms of evidence that are often successful, both in court and at the settlement table.

• 
• Sworn testimony from family members detailing the impact of your injuries on your family;
• Your own sworn testimony;
• A written statement from your doctor;
• Evidence of your use of prescription drugs to reduce depression or anxiety; and
• The opinion of a medical expert witness.

The pain and suffering involved in some injuries, such as fractures, is easy to prove. The pain and suffering involved in other injuries, such as whiplash, can be difficult to prove because there might be scant medical evidence to support it.

No two pain and suffering claims are alike, and their values are highly fact-dependent. Following are descriptions of the two most common methods of calculating a baseline pain and suffering claim.

The “Per Diem” Method

“Per diem” just means “per day”.Using the per diem method, a court or insurer will assign your injury a monetary value (based on the severity) and multiply that number by the number of days you suffered harm.

Example: If you assign a value of $120 per day, and you suffered for 273 days, your total pain and suffering claim adds up to $32,760 ( $120 X 273). 

The “Multiplier” Method

Using the multiplier method, you will add up all your economic damages, including current and future medical bills, current and future lost earnings, incidental expenses such as child care, and other easy-to-count losses. The court or insurer will assign you a multiplier of 1.5 to 5 based on the severity of your injuries.

Example: Suppose you have $68,000 in economic damages with a multiplier of 3.5. That would equal $204,000 in pain and suffering damages.

It is very difficult to obtain pain and suffering damages in Florida car accident cases. PIP insurance, for example, will cover your medical bills and lost earnings, but not your pain and suffering.

If your injuries are serious enough, you can sue the at-fault driver for pain and suffering damages. The problem is that Florida law doesn’t require motorists to carry bodily injury liability insurance.

The following parties, however, are likely to be able to afford to pay pain and suffering damages:

• Commercial truckers (due to high insurance coverage);
• On-duty Uber/Lyft drivers (due to high insurance coverage);
• On-duty employees whose driving took place within the scope of their duties (due to their employers’ high insurance coverage);
• Non-commercial drivers who opted to purchase bodily injury liability insurance;
• At-fault drivers with sufficient financial resources to pay a pain and suffering claim; and
• Out-of-state drivers whose states require them to carry bodily injury liability insurance.

Florida’s ineffective no-fault system has come under heavy criticism recently and might change soon.