A personal injury claim is made up of two things: economic damages and pain and suffering damages.
Economic damages are computed with a calculator for settlement and trial. In most cases, they consist of past and future medical bills and past and future lost wages. Pain and suffering damages, which has a higher price tag in the vast majority of personal injury cases, cannot be readily complied with a calculator.How to Compute Pain and Suffering Damages?
The amount to be awarded for pain and suffering damages is determined by the judge or jury in a case. Settlement calculations are based on that prediction. If a case settles, it means both parties agree that the settlement amount approximates the estimated amount of money a jury would award.
How does the jury calculate pain and suffering? There is no fixed basis, table, algorithm, mathematical formula or another objective basis that a jury is given to determine a dollar amount. There is no market for voluntary submission to pain and suffering on Amazon or e-Bay that we could use for comparison. Instead, the jury awards the amount of money the jurors believe is appropriate, with little guidance beyond pro forma language that the amount is fair.
One thing is for sure. The average pain and suffering settlement amount is directly correlated to the type of injury suffered. In death cases, your state's cap on non-economic damages is more likely than no what you will be awarded at trial if you win your case.
We have had juries award $8 million or $10 million in pain and suffering and, of course, we have had cases where they have awarded much less. There is an old school of thought that you multiplied your medical bills and lost wages times three to get the settlement value of your case.How Lawyers and Insurance Companies Reach the Settlement Value
That is the simplest answer. But it does not help us very much. So let's ask the next question. How do personal injury lawyers and insurance companies predict jury awards and calculate settlement amounts?
Our law firm has handled thousands of personal injury cases. So when we have a new case that is ripe for settlement, we think about the pain and suffering our client has endured and try to compare it to what previous clients have experienced.
No two cases are alike, but inevitably you are comparing cases and saying things like "This is just like the Smith case, but a little more serious" or "This is just like the Jones case, but in a less favorable jurisdiction." But we are not comparing just one case. The process involves a melding of all of the cases we have handled and many of the settlements and verdicts we have obtained.
The insurance companies do this too but take it one step further. Most of the major insurance companies use a computer system to value personal injury cases. Colossus is the most famous computer system, but there are some programs out there that are meant to help claim professionals value pain and suffering damages, in a consistent and predictable way. These computer systems often try to bake into the calculus just how good your lawyers are; by using their track records in previous settlements and, more importantly, at trial.
Sounds great, right?
The most significant harm in any personal injury case is pain and suffering. The vast majority of any settlement or verdicts should be for the pain the victim had to endure.
One way our lawyers talk about the monetary value of pain and suffering is to see what the victim endured on a micro level.
We look at three things:
- How long did the pain and suffering last?
- How severe was the pain and suffering?
- How did the pain and suffering alter the victim's life?
From these three questions and answers, our lawyers can tell the insurance adjuster or the jury that so much money should be awarded for the allotted amount of time for pain and suffering. Let's look at a sample:
- Experiencing the horror of the car accident: $10,000.
- The immediate pain after the crash: $2,000
- The ten weeks after the crash of pain and therapy: $20,000 ($2,000 a week)
- The surgery: $20,000
- Four weeks of recovery from surgery: $4,000 a week
- Pain for the next 45 years of estimate life: $1,576,800* ($4 an hour for the rest of her life)
* Note: This exceeds Maryland's cap on pain and suffering damages which is now $815,000. But our thinking has been to ask the jury what is honestly fair and let the cap sort itself out later.
Is this a fair damage calculation? Again, it depends on the case. But this gives a formula that is hard to argue with, right? Assuming this was a serious crash, who would sell buy on e-Bay the following scenario: getting into a horrific head-on crash that, could potentially take your life and cause you unbelievable pain for a mere $20,000? No one would take that deal.Examples of Recent Maryland Pain and Suffering Cases
Below is a list of recent (as of the time of this writing) pain and suffering outcomes and the medical bill multiplier that was used. These are smaller cases but they help illustrate how hard it is to use a multiplier in valuing pain and suffering damages.
- April 2017, $60,000 Verdict: Westminister, Maryland: A 34-year-old woman was rear-ended on Route 27 in Mt. Airy. The at-fault driver's insurance company was MAIF, arguably the worst insurance company to deal with in Maryland. The plaintiff had uninsured motorist coverage with Nationwide. This is important because most MAIF policies are only $30,000. The woman claimed cervical disc herniations with radiating pain, headaches, and loss of memory. She had $8,180.82 in medical bills. Her lawyers did not, however, bring a neurologist to trial to testify. Instead, they relied on a psychiatrist in Germantown, Dr. Brian Kim, to testify as to the scope of plaintiff injuries. A Carroll County jury awarded $60,000. The multiplier of the medical bills was 6.3.
- April 2017, $250,000 Verdict: Rockville, Maryland: A 60-year-old construction worker was traveling 60 miles an hour on Route 270 in Montgomery County. Maryland when he was rear-ended by a driver who had fallen asleep. He struck the jersey wall and totaled his car. The victim claimed a concussion, injury to both knees, and neck pain with radiculopathy as a result of the crash. He told the jury that he was unable to sit for prolonged periods of time. The jury awarded him $15,371 in medical bills, $5,720 in lost wages, and $230,000 in pain and suffering. The multiplier of his special damages was 8.5.
- March 2017, $13,654: Towson, Maryland: A 32-year-old unemployed woman was driving on Joppa Road in White Marsh when she was broadsided by a driver making a left-hand turn. She allegedly suffered a fractured nose and thumb, injured both knees and chipped a tooth in the crash. The big deal was the thumb. The victim needed two surgical procedures and she was expecting a third. She also claimed that she needed surgery to repair her fractured nose. A third surgery was deemed necessary for her thumb but had not been performed as of the date of trial (because she could not afford it). The defendant was insured by USAA, and her lawyers did what USAA lawyers often do: they denied liability right up to the morning of trial. Surprisingly, the jury was unimpressed with her case. They awarded $6,654 in medical bills and $7,000 in future medical bills (she had sought $20,000). For pain and suffering, the Baltimore County jury awarded $15,000. The multiplier of her specials was 1.1 or .56 (based on what the specials submitted to the jury). Obviously, there was something about this case that the jury did not like in spite of what appeared to be objective injuries.
- February 2017, $20,000: Annapolis, Maryland: A 50-year-old woman was rear-ended while exiting Waugh Chapel Towne Center onto Crain Highway (Route 3). She claimed multiple injuries: headaches and neck, back, shoulder and foot injuries. She filed suit against the Allstate insured driver after getting chiropractic and massage therapy. She had $22,053.38 in medicals. She also sought damages for pain and suffering. An Anne Arundel County jury just did not buy it and awarded her $20,000. The jury awarded $10,000 for pain and suffering and $10,000 in medical bills. In other words, they thought her treatment unnecessary, the health care providers charged too much, or some of the injuries she suffered were not from the car accident. The jury used a multiplier of 1 (.45 multiplier of what she had sought).
- February 2017, $18,421: Ellicott City: An assistant school principal claimed lower back injuries after he was rear-ended on Route 32. He received physical therapy, followed by pain management. He incurred $8,381 in medical bills. Plaintiff filed in District Court (smaller claims), but; the defendant's insurance company, Allstate, removed the case to Circuit Court (larger claims with a jury trial). Why would Allstate want to risk a larger verdict and have the case heard by a jury? Because Howard County is known to give out lower pain and suffering awards, particularly in cases where the injuries are largely subjective. In this case, they awarded $18,421. The multiplier of the medical bills was 1.8.
These cases show you that using a multiplier to calculate pain and suffering damages is foolish because juries just do not decide cases this way. You can also see that the average pain and suffering verdict is a very misleading number.Getting a Maryland Lawyer to Fight for You
There is a great temptation to handle your own personal injury claim. In some smaller cases, this is not always a terrible idea. In severe injury cases, this is a foolish mistake that will cost you.
Call a lawyer and assess your options. You do not need to hire someone today. But call a lawyer with a track record of success in these cases to get the lay of the land. If you want to get a free, no-obligation consultation with our lawyers at Miller & Zois, call 800-553-8082. You will also get a quick response if you reach out to us online with a question or to evaluate your claim.More Information
- The best way to value a case is to look at the type of injury.
- The second biggest variable is the venue. We help you understand the jury award climate in every jurisdiction in Maryland. You can also look at verdict and settlement statistics in other states here.
- How do lawyers, adjusters, and juries value personal injury claims?
- Most medical malpractice cases we handle involve potential pain and suffering awards that exceed Maryland's cap on pain and suffering damges. This article takes a look at how the cap impacts the settlement value of medical malpractice cases in Maryland.