Guide to Calculating Pain and Suffering in a Personal Injury Case

In Personal Injuryby johncannon

Oklahoma Guide to Calculating Pain and Suffering in a Personal Injury Case

Many people wrongly assume you should or can only be compensated for medical bills and damage to your vehicle in a car accident injury claim. The damages caused by a serious car accident do not stop at your medical bills and repairs to your vehicle and the law accounts for other types of damages. Two major types of damages exist under Oklahoma personal injury law: economic damages and noneconomic damages. Economic damages are concrete expenses, i.e. past medical bills, future medical bills, property damage, and lost wages or earning capacity. Noneconomic damages are not so simple and this page is dedicated to explaining one of the major types of non-economic damages: Pain and Suffering.

Our civil law system in Oklahoma and the United States only affords financial damages as compensation for every type of injury in a personal injury case. Fair compensation is 100% of the value of the loss, damage, brokenness, or harm caused by the negligence of another person. Non-economic damages are intended to compensate for things that cannot be replaced, such as quality of life, physical pain for days or for the rest of your life, the loss of a loved one, or other sometimes imaginable loss or pain.

Pain and suffering is a major factor in personal injury compensation and it should be; however, it is often overlooked. Pain and suffering and other noneconomic damages, such as emotion distress or loss of consortium or your previous relationship are difficult to quantify. Your Oklahoma Personal Injury attorney will need to build a case for your Pain and Suffering and other noneconomic injury claims, in order to receive fair compensation. An experienced Oklahoma car accident attorney can use experience and the law to calculate fair compensation for your pain and suffering.

Types of Damages in Personal Injury Cases

As stated above, noneconomic damages are the only tool in our legal system to compensation for nontangible things that cannot be replaced, such as family, respect, love, and quality of life. Most common among these ideas is the intangible harm of “Pain and Suffering.”

Economic Damages in Personal Injury

Economic damages in a personal injury case can be supported by medical evidence and financial records; however, quantifying Pain and Suffering in a personal injury case is more difficult. 

Economic damages are defined under Oklahoma law at Oklahoma Statutes Title 23 Section 61.2 as follows:

‘Economic damages’ means any type of pecuniary harm including, but not limited to: 

  1. All wages, salaries or other compensation lost as a result of a bodily injury that is the subject of a civil action,
  2. All costs incurred for medical care or treatment, rehabilitation services, or other care, treatment, services, products or accommodations as a result of a bodily injury that is the subject of a civil action, or
  3. Any other costs incurred as a result of a bodily injury that is the subject of a civil action.

OKLA. STAT. tit. 23 Sec. 61.2(H)(2)

Some of the most common forms of economic damages that can be supported by medical bills and financial records in a personal injury case include:

  • Past Medical Expenses;
  • Future Medical Expenses;
  • Past lost income;
  • Future lost income;
  • Loss of earning capacity;
  • Destruction of personal property; and
  • Diminished value of personal property.

Noneconomic Damages in Personal Injury

Noneconomic damages include a wide variety of claims. Oklahoma Statutes Title 23 Section 61.2 defines noneconomic damages as follows:

‘Noneconomic damages’ means nonpecuniary harm that arises from a bodily injury that is the subject of a civil action, including damages for pain and suffering, loss of society, consortium, companionship, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, education, disfigurement, mental anguish and any other intangible loss.

OKLA. STAT. tit. 23 Sec. 61.2(H)(6)

Remember, noneconomic damages are meant to compensate all the impact, loss, or damages associated with a personal injury case, beyond the purely economic loss. Noneconomic damages deal with physical, mental, and emotional pain to the victim of a personal injury accident, as well as family and loved ones. The most common type of noneconomic damages fall under one of the following categories:

  • Past and Future pain and suffering;
  • Chronic pain;
  • Stiffness and immobility;
  • Permanent scarring or disfigurement;
  • Loss of limb;
  • Permanent disabilities;
  • Emotional distress;
  • Mental anguish;
  • Fear, anxiety, stress or depression;
  • Lost enjoyment of life;
  • Lost quality of life; and
  • Loss of consortium.

Methods for Determining Pain and Suffering

Although noneconomic damages are less concrete than repaying medical bills or replacing a vehicle based on the vehicle’s value; our justice system has ways of calculating pain and suffering damages. The two most common methods to determine pain and suffering damages are the Multiplier Method and Per Diem Calculation. 

Recall that the only method to compensate pain and suffering in our justice system is monetary damages. When someone suffers, a life altering injury due to the negligence of another party, such as a car accident, motorcycle accident, or construction accident, they not only have medical bills and lost wages, but a differ quality of life. In a serious car accident, the victim may suffer life altering injuries that prohibit them from ever working in their career again or change the relationship they have with their spouse or children. 

The “Per Diem” Calculation

No one would choose money over quality of life; however, it is necessary to determine reasonable compensation for these intangible harms in many personal injury cases. The best method to determine fair compensation for pain and suffering is the “per diem” method of calculating pain and suffering. In the “per diem” model, the jury looks at the pain and suffering that the accident victim will suffer and attempts to determine a reasonable period of time that they will suffer from that pain. The phrase “per diem” comes from Latin and means “each day.” 

Under the “per diem” method the jury looks at the length of time the victim will suffer and tries to compensate the personal injury victim the only way our system can through damages, i.e. every day, month, or year that you will suffer from this injury.

In the per diem approach juries determine a dollar value to assign to each day you will suffer from the pain and determine a length of time for recovery. These two numbers are multiplied and the result is the noneconomic pain and suffering damages in your personal injury case. An example of a valuation of your pain and suffering under the per diem approach may look like the following: 

  • imagine you were involved in a car accident due to the negligence of another driver and suffered a broken leg. 
  • You had to have surgery and you were required to wear a cast for two months. 
  • Additionally, you took pain pills every day to reduce the pain; however, it did not completely cover your pain. 
  • After the cast is removed you have pain in your leg when you stand and when you walk for another four months.  
  • The orthopedist says you will have pain and suffering for four months; however, full recovery will take one year or 365 days of suffering as a result of your broken leg. 
  • Finally, the jury in your personal injury trial determine the per diem figure is $250 a day. 
  • Your per diem Pain and Suffering would be $91,250.

The Multiplier Method

The most commonly referenced method for determining pain and suffering damages is the Multiplier Method. In order to determine the Multiplier, a jury begins with the total damages of plaintiff’s economic damages, then that number is multiplied by a suitable number based on the facts of the case. The typical range of the Multiplier is 1.5 to 5 times, which is intended to represent the plaintiff’s pain and suffering. The more severe the injury and the more impactful it is on the personal injury victim’s life, the higher the multiplier. For example, the multiplier may be highest, such as a 4 or 5 multiplier, for a debilitating, painful, and traumatic injuries, such as: traumatic brain injury, chronic subjective pain, or Permanent Complex Regional Pain Syndrome (“CRPS”). 

Physical injuries alone can result in a high multiplier for pain and suffering, if it substantially affects the quality of your life, i.e. losing a limb in a workplace accident. An example of a valuation of your pain and suffering under the multiplier method may look like the following:

  • Medical Bills, Lost wages, legal fees, property damage, and other expenses totals $500,000;
  • Jury decides to multiple by 4 for pain and suffering;
  • Total Award: $2,000,000

Oklahoma Personal Injury Financial Caps

The Oklahoma Supreme Court previously struck down a statutory cap of $350,000 for noneconomic damages, such as pain and suffering, as unconstitutional in 2019. The case was Beason v. I.E. Miller Services, Inc., 441 P.3d 1107 (Okla. 2019). In the opinion the Oklahoma Supreme Court held that the law treated those that survive differently from those that do not survive an injury.  Specifically, the Court held Oklahoma Statutes Title 23 Section 61.2 subsection (B) unconstitutional. 

Oklahoma Statute Measuring Damages in Personal Injury 

The statute, which determines the Limitations on Damages for Bodily Injury is Oklahoma Statutes Title 23 Section 61.2. The specific language from the statue is as follows:

A. In any civil action arising from a claimed bodily injury, the amount of compensation which the trier of fact may award a plaintiff for economic loss shall not be subject to any limitation.

B. Except as provided in subsection C of this section, in any civil action arising from a claimed bodily injury, the amount of compensation which a trier of fact may award a plaintiff for noneconomic loss shall not exceed Three Hundred Fifty Thousand Dollars ($350,000.00), regardless of the number of parties against whom the action is brought or the number of actions brought. (Unconstitutional in Oklahoma since Oklahoma Supreme Court decision in 2019, Beason v. I.E. Miller Services, Inc., 441 P.3d 1107 (Okla. 2019))

C. Notwithstanding subsection B of this section, there shall be no limit on the amount of noneconomic damages which the trier of fact may award the plaintiff in a civil action arising from a claimed bodily injury resulting from negligence if the judge and jury finds, by clear and convincing evidence, that the defendant’s acts or failures to act were:

  1. In reckless disregard for the rights of others;
  2. Grossly negligent;
  3. Fraudulent; or
  4. Intentional or with malice.

D. In the trial of a civil action arising from claimed bodily injury, if the verdict is for the plaintiff, the court, in a nonjury trial, shall make findings of fact, and the jury, in a trial by jury, shall return a general verdict accompanied by answers to interrogatories, which shall specify all of the following:

  1. The total compensatory damages recoverable by the plaintiff;
  2. That portion of the total compensatory damages representing the plaintiff’s economic loss;
  3. That portion of the total compensatory damages representing the plaintiff’s noneconomic loss; and
  4. If alleged, whether the conduct of the defendant was or amounted to:

a. reckless disregard for the rights of others,

b. gross negligence,

c. fraud, or

d. intentional or malicious conduct.

E. In any civil action to recover damages arising from claimed bodily injury, after the trier of fact makes the findings required by subsection D of this section, the court shall enter judgment in favor of the plaintiff for economic damages in the amount determined pursuant to paragraph 2 of subsection D of this section, and subject to paragraph 4 of subsection D of this section, the court shall enter a judgment in favor of the plaintiff for noneconomic damages. Except as provided in subsection C of this section, in no event shall a judgment for noneconomic damages exceed the maximum recoverable amounts set forth in subsection B of this section. Subsection B of this section shall be applied in a jury trial only after the trier of fact has made its factual findings and determinations as to the amount of the plaintiff’s damages.

F. In any civil action arising from claimed bodily injury which is tried to a jury, the jury shall not be instructed with respect to the limit on noneconomic damages set forth in subsection B of this section, nor shall counsel for any party nor any witness inform the jury or potential jurors of such limitations.

G. This section shall not apply to actions brought under The Governmental Tort Claims Act or actions for wrongful death.

H. As used in this section:

  1. "Bodily injury" means actual physical injury to the body of a person and sickness or disease resulting therefrom;
  2. "Economic damages" means any type of pecuniary harm including, but not limited to:
  3. all wages, salaries or other compensation lost as a result of a bodily injury that is the subject of a civil action,
  4. all costs incurred for medical care or treatment, rehabilitation services, or other care, treatment, services, products or accommodations as a result of a bodily injury that is the subject of a civil action, or
  5. any other costs incurred as a result of a bodily injury that is the subject of a civil action;
  6. "Fraudulent" or "fraud" means "actual fraud" as defined pursuant to Section 58 of Title 15 of the Oklahoma Statutes;
  7. "Gross negligence" means the want of slight care and diligence;
  8. "Malice" involves hatred, spite or ill will, or the doing of a wrongful act intentionally without just cause or excuse;
  9. "Noneconomic damages" means nonpecuniary harm that arises from a bodily injury that is the subject of a civil action, including damages for pain and suffering, loss of society, consortium, companionship, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, education, disfigurement, mental anguish and any other intangible loss; and
  10. "Reckless disregard of another’s rights" shall have the same meaning as willful and wanton conduct and shall mean that the defendant was either aware, or did not care, that there was a substantial and unnecessary risk that his, her or its conduct would cause serious injury to others. In order for the conduct to be in reckless disregard of another’s rights, it must have been unreasonable under the circumstances and there must have been a high probability that the conduct would cause serious harm to another person.

I. This section shall apply to civil actions filed on or after November 1, 2011.

What is My Personal Injury Case Worth?

The most common question any experienced Oklahoma personal injury lawyer is asked is “what is my personal injury case worth?” The answer to that question is very complex. However, the total comes from actual and expected economic damages and the non-economic damages in your case combined. 

Catastrophic injuries are worth more than minor injuries in Oklahoma, because the impact is far greater; both on you and your loved ones. The economic damages in serious cases are greater, because more property is destroyed, there is more lost income/lost earnings, more lost future earning capacity, and medical bills. Additionally, the noneconomic damages and pain and suffering damages will be greater than a car accident victim that suffered minor injuries, because the life altering and permanent nature of the accident injuries. 

Additionally, wrongful death claims receive higher multipliers or per diem pain and suffering amounts. It is very difficult to seek pain and suffering damages without economic damages as well. Although nothing can undue or completely make a victim of a personal injury whole, maximum compensation for all the damages caused, including pain and suffering is the method we have to make victims of personal injury reasonably compensated for the damage caused. 

Have You Been Injured in an Accident?

You are likely wondering about the process of your personal injury case, the resource for the negligent party that caused your injury, and how you will pay your medical bills. The Fierce Advocates at Cannon & Associates, are dedicated to your cause and will explain every step in the process, identify every type of damages you are entitled to, help ensure you are taking the proper steps to receive treatment and document your damages, and help you hold the party that caused your car accident or personal injury responsible for the damage caused. 

Our Fierce Advocates are skilled negotiators and storytellers. We will build your case with you, stand with you every step of the way, and negotiation fair compensation for your injuries, including both economic and non-economic damages. We will fight for you in court, if the insurance company refuses to provide you fair compensation. We handle all personal injury and car accident cases on a contingency-fee basis, so we receive nothing until you do.

Contact – Cannon & Associates: Oklahoma Car Accident Lawyers

Experience matters when you or a loved one has been injured or died as a result of the negligence of someone in a car accident, motorcycle accident, truck accident or other personal injury in Oklahoma. It is important to know the Oklahoma accident attorney you hire is dedicated to your cause and versed in all aspects of accident law and personal injury law in Oklahoma. Cannon & Associates is dedicated to Fierce Advocacy for accident victims and will fight for you. Founder John Cannon has been recognized as a Super Lawyer and National Trial Lawyers Top 40 under 40 attorney. Contact Cannon & Associates to protect your rights and fight to receive the compensation you need and deserve in your Oklahoma vehicle accident. Complete the CONTACT FORM ON THIS PAGE NOW or CALL at 405-657-2323 for a free confidential case evaluation.