Are Pain and Suffering Always Awarded After a Car Accident?

A car accident
often takes a toll in many ways— physically, financially, and even
emotionally. Unfortunately, in New York, not all accidents, even those that
result in bodily injury, are eligible for compensation for pain and suffering.
Because of the state’s no-fault laws, only those who sustain a “serious
injury” may receive payment for pain and suffering.

How New York’s no-fault law works

Lawmakers in New
York have adopted a system where people injured in minor car accidents can
quickly and easily receive payment for their economic damages. These include
medical bills, lost wages, and out-of-pocket expenses. The trade-off for this
protection is that you can’t recover for non-economic losses like pain and
suffering.

After sustaining
a non-serious injury in an auto accident, the injured party must submit their
medical bills and other documentation to their insurance carrier for
reimbursement, no matter who was at fault for the crash. However, they may not
bring a lawsuit against the other driver.

If you experience injuries for which your basic economic losses are more than $50,000 or that are deemed “serious,” then you are allowed to step outside the no-fault system. You can then work with a personal injury attorney to bring a lawsuit against the at-fault party. This also allows you to recover for non-economic losses including pain and suffering.

“Serious injury” threshold to step outside the no-fault
system

You are not
limited to recovery under the no-fault rules if your injuries include:

• Death
• Dismemberment
• Significant Disfigurement
• Loss of a fetus
• Fracture
• Permanent consequential or significantly limited use of a body function or system
• Permanent loss of use of a body member, organ, function, or system
• Other injuries that cause disability resulting in impairment of the ability to perform one’s daily activities for at least 90 of the 180 days following the accident

Unlike in a no-fault claim, if you pursue a lawsuit, then the other party will fight back by pushing blame and minimizing your injuries. It is important to discuss your injuries with our experienced New York City personal injury lawyers so you can be prepared to prove the physical impact of it on your life.

Calculating pain and suffering

Pain and
suffering are called a “non-economic” loss because it is not easily
calculated the way lost wages or medical expenses are. Instead, there are
common ways of calculating its value.

A general rule of
thumb for calculating pain and suffering is to take the medical bills and
multiply the total by a given number. In a typical accident, the bills might be
multiplied by three. However, when the injuries are serious, the bills may be
multiplied by a higher amount.

Insurance
adjusters plug details into computer programs to arrive at a value for pain and
suffering, but these programs usually undervalue the claim. When you work with
an experienced lawyer, they will advocate on your behalf. This involves
presenting the factors that matter in your life. These are elements that the
computer program might not capture so that you can receive full and fair
compensation. If the case does not settle out of court, you may need to present
this information to a jury.

How to present a claim for pain and suffering

If your injury
qualifies you to step outside the no-fault system and make a claim for pain and
suffering, it will proceed like any other personal injury lawsuit. You will
most likely deal with the other party’s insurance company or, once you file a
lawsuit, with its attorney.

There is often a
bit of negotiation that happens; your attorney will present evidence of your
medical treatment and how it has affected your life. The other party will make
an offer to settle the claim, and it will include pain and suffering as a
component. Both sides can either work toward a settlement or prepare to bring
the case to a trial where a judge or jury can decide.

Discuss your accident with a lawyer

You only get one bite at the apple; if you discover after the case has ended that your pain is not resolving as expected, you cannot re-open to request greater compensation. It is crucial to make the most of your claim from the beginning. Protect your rights by speaking with a New York City car accident lawyers.

If you have been
injured in a car accident, discuss your case for free with Douglas &
London. We work hard so you can obtain the compensation you deserve.

Additional Resources:

1. NCBI, Rear-end impacts: vehicle and occupant response, https://www.ncbi.nlm.nih.gov/pubmed/9868635
2. New York Department of Financial Services, Auto Insurance Need to Know: Minimum Auto Insurance Requirements, https://www.dfs.ny.gov/consumers/auto_insurance/minimum_auto_insurance_requirements
3. Findlaw, New York Consolidated Laws, Insurance Law – ISC § 5102. Definitions, https://codes.findlaw.com/ny/insurance-law/isc-sect-5102.html