Typically, yes, as long as you’re insured. In California, Proposition 213 prevents uninsured motorists from receiving pain and suffering damages. A uninsured party who isn’t at-fault can still receive their medical bills though.
While most car accident settlements will include pain and suffering damages, putting a monetary value on them is difficult because of how subjective they can be. Unlike most physical bodily injury, pain and suffering can’t necessarily be “seen.” While symptoms can show themselves to one degree or another, they’re hard to quantify. A doctor can identify symptoms of pain like range of motion, tenderness, and bruising, but those are only indicators of pain.
Even if the injury and pain are unquestioned, it can be difficult to determine or prove how severe it is. One person’s pain tolerance may be much higher than another’s for a specific injury. One person may feel the need to go to the ER because of the pain, while another may feel like they only need over the counter medicine. No matter the extent of the pain, we always recommend seeking immediate medical attention after a car accident. Trying to tough it out or waiting can have long-lasting effects on both your health and any potential injury claim.
How is pain and suffering evaluated after a car accident?
If you’re going to be claiming pain and suffering, you will need to have seen a doctor who diagnosed your injuries. Hopefully, this was done within a reasonable time period of the accident. If you claim you were injured from a car accident, the insurance company will not only want proof of the injury, but also that the injury was from the car accident. If you don’t go to a doctor and the only “proof” you present is what you’re telling them—they will offer you nothing. Additionally, waiting too long to go to a doctor may result in the insurance company arguing your injuries aren’t due to the accident.
If you do seek medical attention right away though, the insurance company is much more likely to take your claim of injury seriously. One example of where this is extremely important is soft-tissue injuries. This is when trauma occurs to muscles, tendons, or ligaments. Because these types of injuries aren’t readily identifiable, these can sometimes raise a red flag. Seeing a doctor right away will help document the injuries, relate them to the car accident, and note any symptoms.
After examination, your doctor will take notes, make a treatment plan, note that you’ve made an appointment and showed up and probably schedule follow up(s). Their notes will also document that you’ve experienced pain and discomfort and other symptoms. Additionally, if there are other injuries that need treatment, your doctor may refer to you a specialist in that field. If you’re seeking pain and suffering damages, you will absolutely need to be examined by a doctor. Don’t wait to be seen!
What is used to determine pain and suffering after a car accident?
Car insurance companies use various types of software to assess pain and suffering. This will all be based on the supporting documentation your car accident lawyer provides. It’s important to be mindful of the different types of records and to keep them organized. The best San Diego car accident attorneys know how to organize these records correctly to get you proper compensation. You can expect them to request the following:
- Medical records
- Medical bills
- Photographs of the injury
- Receipts for medication
- Documentation of missed work
Some lawyers and adjusters will use a “multiplier” of 1-5x to determine pain and suffering damages. This will be based on your “special damages.”Special (or out of pocket) damages are the hard costs of a claim such a medical bills, lost wages, and property damage. For example, if your special damages are $20,000, then a 3x multiplier for pain and suffering would create a demand of $60,000. While it is a “quick” way to try to determine an amount, it leaves the possibility of not being properly compensated.
Realistically, the amount should be calculated on the extent of the injuries diagnosed by the doctor, the treatment needed to recover, and the symptoms of those injuries. Someone with minor soft-tissue injuries likely won’t experience as much pain as someone who may need surgery. These amounts are determined on a case by case basis once there has been a full medical evaluation.
Ultimately, the moral of the story is to make sure you’re covered with car insurance. Otherwise, pain and suffering damages won’t be available to you. Because we just never know what can happen, we always recommend getting a minimum of $100,000/$300,000 limits for both bodily injury liability and uninsured/underinsured motorist coverage.
My name is Daniel Hanecak and I am a San Diego Car Accident Lawyer. I know from personal experience how stressful and time consuming a car accident can be. When you call Hanecak Law Inc., you will speak with me directly. It is my aim to provide you with free and friendly advice. Call me today at (858) 206-4326 for a free case evaluation.