How are pain and suffering damages determined in Texas?
If you were hurt because of another’s negligence,
In personal injury claims, pain and suffering are the most important damage elements. Obtaining just and fair compensation for this human damage is critical for a fair settlement. Texas law allows financial compensation to accident victims who prove their entitlement to these non-economic damages.
Whether you were injured in a car accident, slipped and fell at a grocery store, or were severely injured in a crash with the big rig, pain, and suffering are a big part of a personal injury lawsuit.
To improve your odds of getting full compensation for human damages like pain & suffering, talk with a top-rated Houston pain and suffering lawyer who can work to prove your damages for pain and suffering.
What are Pain and Suffering?
Pain and suffering in Texas are, in effect, the pain that you feel and the mental stress or anguish caused by your injuries. In Texas, juries in court are often asked to evaluate physical pain and mental anguish damages in the past and future.
Valuations are Subjective
The amount of pain and suffering is subjective and unique to each case. Unlike medical bills that can be added up easily, human damages are much more difficult to show to the jury and calculate a fair number. It would be best if you got an experienced attorney obtaining fair compensation for their clients. The value of pain is difficult to calculate even for the best personal injury attorneys.
Pain can vary greatly depending on the nature of the injury and how long the recovery period is. Often, accident victims treat the pain with medication either over the counter or prescription. In some cases, the injuries are such that the pain is chronic and may last a lifetime. Pain and suffering calculated in Texas personal injury cases require the expertise of a top injury lawyer.
Examples of Common Injuries
Some common injuries from accidents that cause pain and suffering include;
· Fractures or broken bones
· Whiplash or soft tissue injuries
· Spinal cord injuries
· Traumatic brain injury or head injury
· Lacerations and Contusions
Reach out to a pain and suffering lawyer to learn about holding responsible negligent parties for damages relating to your injuries. For instance, if you had a ruptured disc, it would be valued greater than a whiplash injury for the same car accident.
Emotional Suffering or Mental Anguish
Mental anguish associated with an injury can be extremely debilitating.
Mental anguish is the emotional pain or emotional distress one experiences after an accident—generally, emotional anguish damages are sought on a jury charge together with physical pain. Post-traumatic stress disorder is a mental anguish condition mainly seen with a severe injury claim. Suffering damages are some of the toughest to value for an insurance company.
Examples of Mental Anguish
Some examples of emotional suffering can include:
· Insomnia or sleeping difficulty
· loss of consortium or relationship with your spouse
· psychological injury or mental trauma
· loss of enjoyment of life or reduced quality of life
· stress or depression
· traumatic stress disorder PTSD
· scarring, particularly in visible areas
· disfigurement and worry about it
You can search the internet for a pain and suffering calculator for damages in Texas, but there is no set formula. Top-rated personal injury lawyers use years of experience analyzing liability factors, damage evidence, and even insurance issues to determine an acceptable range of settlement for a personal injury case.
Other Types of Non-Economic Damages in Texas
Other types of noneconomic damages in Texas can include the following:
· physical impairment
Each non-economic damage in Texas is submitted for consideration by a jury if the case does not settle before a trial. As a rule, there must be some evidence of each element submitted for the jury to consider that part of the damages.
What Things Impact the Value Pain and Suffering Damages?
Each personal injury case is unique because it involves the individual parties and the facts of the accident and injuries. Nevertheless, certain factors can impact pain and suffering damages in a personal injury lawsuit.
Factors Impacting Pain and Suffering Calculations
Factors that top-rated personal injury attorneys use to evaluate damages, including pain and suffering, can include:
· The type and severity of injuries
· Sworn testimony from treating physicians
· Objective findings in the medical records
· The length of recovery and permanency of the injuries
· Whether surgery was required
· The amount of total insurance available for the damages
· liability circumstances such as drunk driving
· Whether the plaintiff was partly at fault for the accident
Anyone of the above-listed factors can impact the reasonable value of pain and suffering in Texas. It is best to consult a pain and suffering attorney if you have questions about the types of damages or the value of your damages in a personal injury lawsuit. While many insurance carriers use a multiplier method, ultimately, many cases do not fit within the multiplier model and must be determined by a jury in Texas courts.
Attorneys will value pain and suffering by relying on their experience and what jurors believe is reasonable in any individual case.
Adjusters can take advantage of those who seek a quick settlement. Personal injury cases often take longer than many expect them to last.
Multiplier Method of Calculating Pain and Suffering in Texas
In Houston, many insurance companies use a basic multiplier method to determine pain and suffering from an accident claim. The multiplier method takes your economic damages and totals those, and then adds a multiplier between 1.5 and five to come up with a pain and suffering settlement offer. Economic damages, including medical bills and lost wages, are added to the base economic damages starting point. The multiplier method then calculates pain and suffering.
Generally, the less serious the injury, the lower the multiplier scale. Conversely, the more severe the injury, the higher the scale. However, there are many personal injury cases in Houston where the injuries are so severe that the multiplier method will not be in the ballpark of the fair value for the injuries.
Examples of Pain and suffering calculated in Texas personal injury cases
An example would be you were rear-ended in a car accident that involved no fault on your part. You went to the emergency room yet required no follow-up treatment or minimum follow-up medical care. In this case, an insurance adjuster may attribute a 1.5 factor.
If, however, you were in the same car accident and required extensive medical care and surgery for a herniated disc in your neck or low back. In that case, the multiplier would be on the high end, and a personal injury attorney may seek a much greater amount than that multiplier provided for your case.
Calculating pain and suffering damages with a personal injury claim to determine the value of a settlement is not as simple as the multiplier method seems. Ultimately a judge or jury may need to decide what is fair compensation for your injury claim.
The Per Diem Method
Insurance companies don’t use the per diem method to calculate pain and suffering. This method is more as an argument used in negotiation or trial. In essence, the per diem method takes the recovery time and multiplies the daily rate of pain and suffering.
For example, if you were injured in a car accident and required physical therapy for two months, this method picks a day rate and would multiply by 60 days. If the rate were $300 daily for pain and suffering, the total would be $18,000.
However, insurance companies do not use this method in most personal injury cases.
How to Maximize Damages in a Personal Injury Case in Texas?
The best way to maximize your damages in a personal injury case in Texas is to hire the best attorney near you to handle your case. You should also seek medical care promptly and follow your doctor’s recommendation. When an adjuster is looking at your pain and suffering damages, gaps in medical care will be considered.
Timing and Extent of Your Medical Care
Toughing it out or delaying going to a doctor will only hurt your case. Often, a car accident victim will go to the emergency room and find out whether nothing is broken. They are given prescriptions for pain and muscle-related injuries and told to follow up with a medical doctor.
Released from the Emergency Room
However, they mistakenly believed that the fact that they were not kept overnight at the hospital meant they would be OK without further medical care. Much later, finding out that the condition was much more serious than they were led to believe at the emergency room.
Verification of Injury by Tests
Often, personal injury lawyers see a situation where more sophisticated tests were not done at the emergency room, and it was only later that the extent of the injuries was revealed. When pain and suffering are calculated in texas by an insurance company, it will consider the timing and duration of your medical care.
Keep Track of Your Struggles and Treatment
Keep a diary or a log of your treatment and pain and suffering. Doing so is particularly helpful for injuries that last many months or longer. Texas personal injury cases sometimes settle based on the multiplier method. However, physical pain and suffering calculated in texas personal injury cases include many other considerations.
Valuing Pain & Suffering is Not Exact Science
As set forth above, many factors can impact the value of a personal injury case which includes pain and suffering. Multiplier methods commonly relied on by insurance companies only sometimes give a fair assessment of the value of a case. The length of the recovery period and severity of the injuries must all be considered in any personal injury claim.
Is there a Cap on Pain and Suffering in Texas?
Texas has no cap on pain and suffering damages for personal injury cases. The exception is medical malpractice claims, which have strict caps on non-economic damages like pain and suffering.
How to Prove Pain & Suffering in Texas
Pain and suffering, like all injury damages in Texas, must be proven. The most common methods for proving pain and suffering include:
Friends or family members may testify about what they saw and how the plaintiff suffered. Witness testimony can be powerful evidence in an accident lawsuit.
Photographs or Day in the Life Films-
Photographs and videos can be admissible and often compellingly tell the story. Day in the life video will require testimony to authenticate and is often used with catastrophic injury cases.
Testimony of Doctors or other Medical Providers-
Doctors are often asked to testify in an injury lawsuit as an expert to tell the jury about the injuries and their opinion of the cause. Part of the testimony can include observations and opinions about the painfulness of the injury and the recovery process. Where injuries are permanent, or future medical bills are factors, life care planners may also testify to prove future medical needs.
Testimony of the Injured Victim
The plaintiff’s testimony at a trial can be used as evidence of the pain and anguish they went through because of the accident. This evidence is most effective when backed up by doctors and other witnesses.
What to Know Before Agreeing to a Settlement
Settlements are Forever
If you agree to settle your case with an insurance company, the case is over, and the claims can’t be revived. They call it a “settlement” for a reason. The case is put to bed forever.
Be Wary of Estimated Medical Bills in a Settlement
One mistake some make is agreeing to settle their case within days or weeks of the accident while still undergoing or needing medical care. Sometimes the adjuster will “estimate” the medical bills and give an amount for pain and suffering. This approach is a mistake for the injured person as it “shifts the risk” from the insurance company to the victim. This, of course, is why the adjuster seeks to settle your case in that manner.
Oral Agreements May be Binding
In Texas, courts have held that a recording of an oral acceptance of an offer of settlement is binding.
Consider Not Negotiating a Settlement Until You Know the Extent of Your Injuries
You have made a mistake if you negotiate a settlement for injuries before knowing exactly how bad it is, how long it will take, and the recovery cost. Many agree to a value for economic damages, including medical bills, before they know what it will cost. Likewise, pain and suffering calculated before you know how long it will take to recover can make you the loser.
Be Aware of Hospital Liens and Subrogation Claims
Hospital liens are claims to proceeds of settlements in personal injury cases. If a hospital lien is filed for the care given to an accident victim, the insurance company for the at-fault party will be obligated to pay the lien out of the settlement amount. Likewise, if health insurance companies or Medicare or Medicaid paid for medical treatment claimed in an injury case, they expect to be paid back for those payments.
If you have not considered those liens of claims before settling, you will be disappointed in your net proceeds.
If unsure of the approach, take advantage of a free consultation from a top-rated personal injury attorney near you.
If you have been injured in an accident in Houston, TX, and need help, contact our Houston personal injury lawyers at Baumgartner Law Firm for a free consultation by calling (281) 587-1111.
Baumgartner Law Firm Personal Injury Lawyers
6711 Cypress Creek Pkwy
Houston, TX 77069