As a no-fault state, New York requires persons injured in accidents to seek remuneration through their own personal injury protection policies. Though no-fault systems exist to simplify the claims and compensation processes, they can make matters more difficult, particularly when certain damages are involved. For instance, if you hope to recover compensation for pain and suffering, you must step out of the no-fault system, which is not always easy to do. An experienced personal injury lawyer can advise you on what you need to do to qualify for pain and suffering and help you fight for the damages you deserve.
Pain and Suffering Damages
The term “pain and suffering” is a legal way to refer to any physical pain or emotional anguish you may live with following an accident. Because both physical pain and emotional duress can interfere with your quality of life and daily living, the courts try to compensate victims who live with a substantial amount of both. Though pain and suffering is different for everyone, it may help you to have a few examples of what it looks like.
Following an accident, you may develop chronic pain. This pain may last for days, weeks, months or even years. Below are examples of the types of pain you may develop:
- Neck pain
- Back pain
- Traumatic brain injury
- Nerve damage
- Joint dislocation
- Internal organ damage
- Sprained or pulled muscles
Emotional suffering often comes along with physical pain. However, regardless of whether you live with chronic pain, you may still experience psychological distress following an accident. Like with physical pain, it can last for days to years. Types of emotional duress you may experience are as follows:
- Loss of enjoyment of life
Individually, physical pain and emotional suffering can interfere with your life. However, when you experience both, they can greatly diminish your overall quality of life and happiness.
Loss of Consortium
In more extreme cases, accidents result in death. If you lost a loved one in an accident or due to accident-related injuries, you may not only feel sad, angry and confused but also, you may feel the loss in a more tangible way. For instance, if you lost your spouse, you may have also lost an extra income and/or companionship. Your children may suffer for lack of parental guidance, and your home may suffer for the lack of two adults maintaining it. To compensate families for these types of losses, the courts award damages for “loss of consortium.” Examples of loss of consortium are as follows:
- Love and affection
- Parental guidance
- Spousal intimacy
- Household services
In addition to pain and suffering, talk to your lawyer about damages for loss of consortium.
When Can You Sue for Pain and Suffering in New York?
To step outside of the no-fault system in New York, you must have sustained what the law considers a “serious injury.” A serious injury is one that involves one of nine outcomes:
- A fracture
- Substantial disfigurement
- The loss of a fetus
- The permanent loss of an organ, member of the body, or bodily system or function
- The permanent and substantial limitation of the use of a body part or organ
- The substantial limitation of the use of a bodily system or function
- An injury or impairment that inhibits your ability to engage in your typical daily activities for no less than 90 days during a 180-day period
Though it is easy to prove most of these nine outcomes, such as death or dismemberment, some, such as the substantial limitation of the use of a bodily system or function, may be more difficult to prove. A skilled personal injury attorney can help demonstrate the severity of your injury and substantiate your claim for pain and suffering damages.
Factors That Affect Pain and Suffering Compensation
If you plan to file for pain and suffering damages, it is important that you understand what factors affect the court’s decision. In addition to the severity of your injuries, the courts will take into account the following:
- Whether you live with fear, depression or anxiety following your accident
- The extent to which your injuries have affected your daily life
- Whether you developed sexual dysfunction or eating or sleeping disorders following the accident
- The length of your anticipated recovery
- Whether your injuries have adversely impacted your relationships
- Whether your injuries have the potential to shorten your life expectancy
The more severe these factors are, the more likely the courts are to award you damages for pain and suffering.
How Do the Courts Calculate Pain and Suffering Damages?
The courts and insurers use one of two techniques for determining the worth of a pain and suffering claim: The per diem approach and the multiplier method.
The Per Diem Approach
Under the per diem approach, you assign a dollar amount to every day between the day of your accident and the anticipated date of your full recovery. You multiply this dollar amount by the number of days to come up with the amount you wish to ask for. If you choose to use the per diem method, it is crucial that you come up with a realistic daily rate, otherwise the courts are unlikely to seriously consider your claim. Most experienced personal injury attorneys advise clients who prefer this approach to set a daily rate that is equivalent to their daily work wage.
The Multiplier Method
The multiplier technique is the most straightforward method for calculating pain and suffering damages and, therefore, the most used. To use this method, the courts or insurers assign a number between 1.5 and five to your case. This number is called “the multiplier.” Deciding parties assign higher multipliers in cases that involve more severe injuries. In more extreme cases, they may even use a multiplier of six or seven.
Once they set a multiplier, the insurers or courts will multiply your actual damages, such as medical expenses, by the multiplier. The product is the amount you should receive for pain and suffering. However, note that insurers and the courts may use their discretion to award you more or less than what the multiplier method yields.
How To Prove Pain and Suffering
Pain and suffering is subjective and, as a result, difficult to prove. That said, an adept personal injury lawyer in Manhattan can help you gather the evidence necessary to support your claim. Types of evidence the courts and insurers look for are as follows:
- Medical records
- Doctor’s notes
- Mental health/therapy records
- Personal accounts of pain and suffering
- Testimony from friends and family
The more evidence you can provide, the better an understanding the deciding parties will have of the impact your injuries have had on your life.
Hire a Manhattan Personal Injury Attorney To Help With Pain and Suffering Damages
Obtaining compensation for pain and suffering in fault states is difficult. In no-fault states such as New York, it can be even more so. For this reason, it may be in your best interests to hire a personal injury attorney who is familiar with the claims process outside of the no-fault system and, more importantly, pain and suffering claims. If you need help with your pain and suffering claim, consult with the attorneys at Cellino Law. Contact us now to schedule your free initial consultation.
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