Serious accidents can leave victims and their families facing a lifetime of consequences. Along with physical trauma and financial costs, accidents can also lead to long-term pain and suffering. In many cases, accident victims and their loved ones are never able to fully recover, and securing just compensation for their pain and suffering becomes essential for managing the long-term effects of their trauma or their loved one’s untimely death.
But, while it is possible to calculate accident victims’ medical expenses and lost earning potential, there isn’t a direct way to assign a dollar value to a victim’s or family member’s pain and suffering. So, how do you calculate just compensation for pain and suffering after an accident in Florida? The courts, lawyers, and insurance companies use two primary methods, each of which can prove more or less advantageous under any given set of circumstances.
What Constitutes “Pain and Suffering” in a Personal Injury or Wrongful Death Case?
Before we talk about how to calculate just compensation for pain and suffering, we should first discuss what it means to experience pain and suffering after a traumatic accident. From car and truck accidents to building collapses and maritime disasters, all types of accidents can lead to pain and suffering for victims and their loved ones. But, what does this mean, exactly?
Pain and Suffering in Personal Injury Cases
In personal injury cases involving serious but non-fatal injuries, “pain and suffering” refers to the various invisible and non-financial consequences victims experience as they struggle to move on. This includes physical pain as well as emotional and psychological impacts such as:
- Emotional trauma
- Humiliation and embarrassment
- Loss of companionship and consortium
- Loss of enjoyment of life
- Permanent scarring and disfigurement
In many cases, accident victims’ pain and suffering will be related to their physical trauma. For example, accident victims may experience loss of consortium due to sexual dysfunction caused by internal trauma, or they may experience loss of enjoyment of life due to a physical disability or traumatic brain injury (TBI). However, accident victims can also experience psychological impacts such as anxiety and depression long after their physical injuries fully heal.
A critical fact to understand about pain and suffering claims in personal injury cases is that victims who experience pain and suffering are entitled to financial compensation above and beyond the costs of their medical, psychological, or psychiatric care. For example, let’s say you are experiencing symptoms of depression after a serious car accident. In this scenario, not only would you be entitled to compensation for the costs of treating your depression, but you would also be entitled to compensation for the effects your depression has on your day-to-day life.
Generally, accident victims in Florida are entitled to just compensation for all of the financial and non-financial costs they incur. This includes compensation for their pain and suffering—whether they experience emotional and psychological effects for months, years, or the rest of their lives. In personal injury cases, the key is to gain a comprehensive understanding of the long-term effects of the victim’s trauma, and then use this understanding to present a compelling case for maximum compensation.
Pain and Suffering in Wrongful Death Cases
In Florida wrongful death cases, the focus is on the pain and suffering experienced by the victim’s family members. This is in contrast to the law in many other states, where eligible family members can pursue “survival actions” to recover compensation for their loved ones’ losses suffered prior to death. Section 768.20 of the Florida Statutes plainly states:
“When a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate.”
However, whereas many other states preclude claims for family members’ pain and suffering, Section 768.21 of the Florida Statutes explicitly authorizes such claims. Specifically, Section 768.21 provides that:
- Spouses: “The surviving spouse may . . . recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.”
- Children: “Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may . . . recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury.”
- Parents: “Each parent of a deceased minor child may . . . recover for mental pain and suffering from the date of injury. Each parent of an adult child may also recover for mental pain and suffering if there are no other survivors.”
For purposes of Florida’s wrongful death laws, a “minor” child is defined as a child under the age of 25 (even though the age of majority is 18 in most other contexts). “Mental pain and suffering” includes all of the various emotional and psychological effects of losing a spouse, parent, or child—including anxiety, depression, and most of the other effects listed above.
Two Methods of Calculating Just Compensation for Pain and Suffering
As we mentioned in the introduction, Florida law recognizes two primary methods of calculating just compensation for pain and suffering. While these methods involve different calculations, they take into account many of the same key considerations.
For example, regardless of the method used, one of the most important considerations is the severity of the accident victim’s or surviving family member’s pain and suffering. Generally, the more severe a victim’s or family member’s pain and suffering, the more he or she will be entitled to recover. Duration is a key factor under both methods of calculation as well, which means that the victim’s or family member’s age is also a relevant consideration. With this in mind, broadly speaking, some of the key considerations for determining an appropriate “value” for pain and suffering include:
- The severity of the victim’s physical injuries (in personal injury cases)
- The family member’s relationship to the victim (in wrongful death cases)
- Limitations experienced in the victim’s or family member’s day-to-day life
- Specific diagnoses (i.e., anxiety or depression)
- Age at the time of the accident
Now, let’s take a look at each of the two methods used in Florida: (i) the “multiplier” method, and (ii) the “per diem” method.
1. The “Multiplier” Method
The first method of calculating just compensation for pain and suffering after an accident in Florida is the “multiplier” method. This method involves three steps:
- Calculating the Victim’s or Family Member’s Economic Losses – Since this calculation is based, in part, on the victim’s or family’s economic losses, the first step is to calculate these losses. This includes calculating treatment costs, lost earnings, and other out-of-pocket costs incurred to date and likely to be incurred in the future.
- Determining an Appropriate Multiplier – The next step is to determine an appropriate multiplier. Typically between 1 and 5, the multiplier is based on the severity of the victim’s or family member’s pain and suffering.
- Applying the Multiplier – The third and final step is to apply the multiplier to the victim’s or family member’s economic losses. For example, if a victim’s economic losses total $250,000 and a multiplier of 4 is used, the victim would be entitled to $1 million in compensation for his or her pain and suffering.
2. The “Per Diem” Method
The second method of calculating just compensation for pain and suffering after an accident in Florida is the “per diem” method. This method also involves three steps, although they differ substantially from those of the multiplier method:
- Calculating a Daily (or “Per Diem”) Rate – With the per diem method, the first step is to calculate an appropriate daily dollar value for the victim’s or family member’s pain and suffering. This is based on the severity of the victim’s or family member’s pain and suffering, as determined using the considerations discussed above.
- Determining How Long the Pain and Suffering Will Endure – The next step is to determine how many days the victim or family member is reasonably expected to experience pain and suffering during his or her lifetime. This could be a limited time period, or it could be the rest of the victim’s or family member’s life.
- Multiplying the Daily Rate By the Duration of Pain and Suffering – Once an appropriate daily rate and the duration of the victim’s or family member’s pain and suffering have been determined, the final step is to multiply these two numbers. For example, if a surviving spouse’s per diem rate is $300 and he or she has a 20-year life expectancy, the calculation would be $300*20*365=$2.19 million.
Maximizing Financial Compensation for Pain and Suffering
In all cases, there are steps that accident victims and family members can—and should—take to maximize the financial compensation they can recover for their pain and suffering. Working with their attorneys, accident victims and family members should collect and generate documentation including:
- Medical Records – Medical records showing that accident victims and family members have been diagnosed with anxiety, depression, and other conditions can help substantiate their pain and suffering claims. If victims’ or family members’ medical records indicate the severity of their conditions, this can help with placing an appropriate dollar value on their pain and suffering as well.
- Expert Testimony – Along with medical records, testimony from psychologists, psychiatrists, and other experts can help significantly with demonstrating the effects of an accident victim’s injuries or a family member’s untimely death. This testimony can come from the claimant’s doctor or from a medical expert who specializes in evaluating pain and suffering claims.
- Witness Testimony – Testimony from friends, coworkers, and loved ones can also help paint a picture of how a victim’s or family member’s life has changed since the date of the accident. Oftentimes, this testimony can serve as extremely compelling evidence of the severity of a person’s pain and suffering.
- Diary or Pain Journal – In many cases, the most compelling evidence of pain and suffering can be the victim’s or family member’s own account of how the accident has changed his or her daily life. By keeping a daily diary or pain journal, claimants can create a log of their day-to-day pain and suffering, and this log can shed light on the gravity of the accident’s emotional and psychological effects.
- Photos and Video Presentations – Personal injury and wrongful death lawyers can also use photos and video presentations to illustrate claimants’ pain and suffering to judges and juries. While documenting a person’s pain and suffering can be challenging, it can also be a critical step in the recovery process.
Discuss Your Legal Rights with an Attorney at Silva & Silva
If you need to know more about seeking financial compensation for pain and suffering after a serious or fatal accident in Florida, we encourage you to get in touch. To schedule a free and confidential consultation, please call 305-445-0011 or contact us online today.