By Francis M. Smith
When seeking compensation for accident injuries, the key to ensuring that the settlement you're agreeing to is reasonable is to understand the value of your injuries. On the surface, this seems simple enough – the costs of your medical treatment can be added up easily enough from your doctor bills, and the value of the wages lost as a result of your injuries can be found with some simple bookkeeping. But there's no easy dollar value to assign to pain and trauma. There are formulas that insurance adjusters use to calculate compensation for pain and suffering; at the basic level, these methods involve applying a multiplier to the more tangible medical costs of your injury. In theory, the more painful and lasting the injury, the higher the multiplier. It has always been a very inexact science, if you can call it that, and many insurance companies now don't trust their adjusters enough to settle case, but make them feed information into a computer program that spits out a value range for the case being evaluated.
Of course, pain is a subjective experience, and as such is difficult to demonstrate conclusively at the settlement table or in a court of law. Even in the medical profession, rough approximations are used to gauge the level of pain and discomfort a patient feels (have you ever been asked to “rate your pain” from 1 to 10, and been pointed to a chart of cartoon faces?). So rather than try to quantify every injured plaintiff's specific level of pain from their injuries, insurance companies gauge pain and suffering by type of injury.
This isn't the most accurate or scientific measurement of pain. Some people heal from broken bones quickly and completely, while others experience persistent pain and weakness from a “mere” sprain. These categorizations form the base line for your negotiations with the insurance company; it's still possible to show evidence that you have suffered more severe pain that would normally be suggested by your “lesser” injury.
The insurance industry divides injury claims into two general categories for the purpose of quantifying pain and suffering damages. The first category is soft tissue injury, which include muscle strains, sprains, bruising, and other kinds of injury that have no real medical “tests” – the primary source of evidence for these injuries is the patient's report of experiencing pain and discomfort. The second category is hard injury, which generally can be detected and demonstrated through some form of medical scan or examination- like an x-ray, MRI, CT scan or EMG. .
Insurance companies generally regard soft tissue injuries as a lesser category of injury, and as such assign them a lower pain-and-suffering multiplier (usually from 1.5 to 3 times the value of the medical costs of the injury). This view is held for a few reasons: first, soft-tissue injuries are generally considered to be neither life-threatening nor permanent, so insurance companies feel that these injuries are not as costly despite the level of pain the injury victim experiences. In addition, because subjective patient reports are the main source of evidence for these injuries, insurance companies know that it would be hard for the injured plaintiff to prove the severity of their pain to a jury, should they choose to bring their case to court.
Hard injuries are taken more seriously by insurance companies and receive a commensurately higher pain-and-suffering multiplier (4 to 5 times the injured person's medical costs, if not more). These are injuries that show up on x-rays or other imaging tests, or require invasive physical treatment to repair or assess the injury. Many types of injury fall under this categorization:
Broken bones – This is perhaps one of the most obvious “hard injuries.” A bone fracture of any kind that shows up on an x-ray or other scan will raise the category of your injuries in the insurance company's books, even if it's only a hairline crack or a small chip broken off by a damaged ligament. Of course, more serious and life-impacting fractures will merit higher compensation than minor ones.
Wounds – Any breach of the skin serious enough to require stitches, transfusions, or other treatment can move your case into the “hard injury” category.
Dislocations and tears – Neither insurance adjusters nor jurors are typically medical professionals, and the way a doctor describes your injury can have an impact on the perceived severity (and therefore value) of that injury. A “torn ligament” sounds more serious than a “sprained ankle,” even when the two terms describe the same injury and entail identical healing times and levels of pain. Make careful note of how your doctors describe your injuries, and use those same terms when negotiating with the insurance adjuster.
Head injuries – Though concussions and other head injuries may not always show up on medical tests, insurers know they can be dangerous, lasting, and costly injuries. Make note of any disorientation, dizziness, nausea, memory problems, or unconsciousness resulting from your head injury, and any lingering headaches or other symptoms.
Spinal and vertebral injuries – Like dislocations, how these injuries are described matters. Describe them using the medical terms from your diagnosis, which many times will be found in the MRI reading.
If you or a loved one have been injured in a serious accident, please contact me or call me at 908-233-5800 for a free consultation.