Updated: 5/15/23
Calculating pain and suffering is the most difficult part of a personal injury claim to calculate because there isn’t a marketplace for pain and suffering. It’s a legal term that is used to describe the physical and emotional stress caused by a slip and fall, car accident, or other personal injuries. While it’s a critical component in determining compensation, calculating pain and suffering can be challenging for both the plaintiff and the defendant. Below are our eight reasons why we believe calculating pain and suffering is difficult.
1. Subjectivity: Pain and suffering are subjective experiences, making it difficult to accurately quantify their value. Stated another way: You can’t buy pain and suffering.
2. Insurance company tactics: Insurance companies use various tactics to minimize the value of your claim, including downplaying your actual pain and suffering, saying you were partially at fault for the car accident, questioning whether certain medical treatments or procedures were necessary or reasonable, saying your injury is degenerative due to age or due to a pre-existing injury.
3. Varying degrees of pain: People experience pain differently, so it can be challenging to compare one person’s pain to another’s.
4. Juries: Jury awards for pain and suffering can vary widely from case to case. One reason for this is the lack of understanding by juries. Juries may not fully understand the concept of pain and suffering or may have biases that affect their decision-making.
5. Difficulty in proving causation: It can be challenging to prove that your pain and suffering were directly caused by the car accident, especially if you had preexisting conditions.
6. Statutory caps on damages: Some lawsuits, like medical malpractice claims, have caps on damages for pain and suffering, which limits the amount of compensation you’re able to receive for these damages.
7. Experts: Estimating the value of a pain and suffering claim often requires opinions from expert witnesses who may have their own biases.
8. Florida Law: Allocating fault for an injury between the at-fault party and the victim under Florida’s comparative negligence law can impact the ability to accurately calculate pain and suffering damages. That’s because allocating a percentage of fault for each party is also a subjective calculation.
Update: Florida replaced its pure comparative negligence system with a modified comparative negligence system. Consequently, a personal injury victim can now recover in proportion to the defendant’s percentage of responsibility only if the victim’s own share of responsibility is 50 percent or less. If the victim bears more than 50 percent liability, the victim cannot recover from the defendant.
Related: Pain and Suffering Claims Under Florida Law
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