Pain and suffering after a car accident: what counts and how it is proven

What pain and suffering covers#

Pain and suffering is not only physical pain. The law treats it as a group of losses that have no bill attached, which is why it is also called non-economic damagesNon-economic damages. Losses without a price tag, such as pain, suffering, emotional distress and loss of enjoyment of life. Glossary. California's jury instruction on these damages lists items such as physical pain, mental suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation and emotional distress.

In practice, a claim may include:

• Physical pain, past and expected in the future, from the injury and from treatment such as surgery or therapy.
• Emotional distress, including anxiety, fear of driving, sleep problems and depression. Some people develop post-traumatic stress; see PTSD after a car accident.
• Loss of enjoyment of life, such as giving up a sport, a hobby or time with children.
• Scarring and disfigurement, including how they affect confidence and daily life.
• Physical impairment, such as a limp, limited movement or weakness that lasts.

Federal estimates show how large this kind of harm is across the country. NHTSA put the economic cost of US crashes in 2019 at $339.8 billion, and the total harm, once lost quality of life was included, at $1.37 trillion. Those are national totals, not a guide to any one claim.

How pain and suffering is proven#

Because there is no receipt, pain and suffering rests on evidence that makes the harm concrete and believable. Insurers and juries look for a consistent story told by several sources.

Medical records come first. Tell every provider about every symptom, including emotional ones, so they are written down. Gaps in treatment or long delays before the first visit are among the first things an adjusterInsurance adjuster. The insurance company employee who investigates a claim, decides what the policy covers and negotiates payment. Glossary notices. Our guide to medical records explains how to request them.

A journal turns months into detail. Short, dated entries are enough. Write what hurt, what you could not do, how you slept and what you missed.

Other people fill in the before and after. A spouse, coworker or friend can describe changes that you might downplay, such as irritability, withdrawal or new limits at work.

No official formula#

You may see online calculators that multiply medical bills by a number, or put a daily rate on pain. Those numbers do not come from any statute or jury instruction. The law leaves the amount to the judgment of a jury, or to negotiation between the two sides, and this guide does not estimate it.

What does affect these damages is the evidence. Several factors come up again and again:

• how serious the injury was and how long recovery took;
• whether there is lasting pain, impairment or scarring;
• how consistent and complete the medical records are;
• how clearly the injury changed work, family life and activities;
• your share of fault, which reduces all damages in most states;
• the at-fault driver's policy limitsPolicy limits. The most an insurance policy will pay for one claim or one accident, no matter how large the losses are. Glossary, and any cap in your state.

A pre-existing condition does not automatically defeat a claim. California's jury instruction, for example, tells jurors to award damages for the effect of the crash on a physical or emotional condition that it made worse, but not for the condition as it was before.

How juries are instructed#

When a case reaches trial, the judge reads the jury instructions, including how to decide non-economic damages. Many states publish standard "pattern" instructions. California's, written by the state's Judicial Council, is a clear example.

The same instruction says that to recover for future pain, the injured person must prove they are reasonably certain to suffer that harm. The amount is the jury's decision. Other states publish their own pattern instructions, and the wording differs, so a lawyer in your state can tell you which one would apply.

No-fault thresholds#

In a no-fault state, your own personal injury protectionPersonal injury protection (PIP). Coverage under your own policy that pays medical bills and some lost income after a crash, whoever caused it. Glossary pays medical bills and some lost income after a crash, whoever caused it. In exchange, the right to sue the at-fault driver for pain and suffering is limited. You can bring that claim only if your injury passes a serious injury thresholdSerious injury threshold. A rule in some no-fault states that lets you sue the at-fault driver for pain and suffering only if your injury meets a legal definition of serious, or a dollar level of medical bills. Glossary. Thresholds come in two kinds: a verbal one, which describes the injury, and a monetary one, which turns on the size of the medical bills.

In all, 9 states use a no-fault system. Four examples:

Three more states, Kentucky, New Jersey and Pennsylvania, use a choice no-fault system. Each lets a driver accept limits on the right to sue or keep the full right to sue. In Pennsylvania, for example, the choice is between "limited tort" and "full tort." Your policy documents show which option applies to you.

The thresholds limit claims against the at-fault driver, not claims on your own coverage. Our guide to who pays medical bills explains what your PIP covers in the meantime, and your state page shows the system that applies where you live.

What can weaken a pain and suffering claim#

Insurers look for reasons to doubt non-economic losses. Common ones include:

1. A late first visit. A week between the crash and the first doctor's visit invites the argument that something else caused the pain.
2. Gaps in treatment. Missed appointments or a long break can be read as recovery.
3. Inconsistent accounts. A pain level of 2 at the doctor's office and 9 in a demand letter will be pointed out.
4. Social media. Photos of a hike or a party can be used to argue the injury is minor, even when they do not show the whole day.
5. Your share of fault. Fault reduces all damages in most states. Michigan adds a twist: If you are more than 50% at fault you lose pain-and-suffering (non-economic) damages, but can still recover economic losses reduced by your share of fault.

When the claim is ready, the demand letter is where the evidence of pain and suffering is laid out for the insurer.