Pain and suffering damages refer to the compensation parties may receive in certain personal injury lawsuits for the physical pain and mental anguish that they suffer because of an injury. The damages are a type of compensatory damages that plaintiffs may receive in some jurisdictions. In particular, they are a category of non-economic damages as opposed to economic damages (or general damages as opposed to special damages). Other examples of non-economic damages include loss of consortium and loss of enjoyment of life.
There is not one set standard that a judge or jury will use for calculating pain and suffering awards. Plaintiffs often show evidence of physical pain and emotional trauma and a judge or jury then decides on a reasonable amount of money for these damages.
Note, though, that parties often use a “multiplier method” to help estimate pain and suffering losses. Under this method, a plaintiff or attorney multiplies a plaintiff’s economic damages by a number between 1 and 5. The more severe the injuries and the greater the suffering, the higher the multiplier.
Most state laws say that the money a person receives from a pain and suffering award is not taxable, either at the state or federal level. This rule is true provided that an injury victim suffers from some type of physical injury or illness. In cases involving only emotional pain, a plaintiff’s damage award could be taxable.
Our California personal injury attorneys will explain the following in this article:
- 1. How are pain and suffering damages calculated?
- 2. Is emotional distress included in pain and suffering damages?
- 3. What is a pain and suffering multiplier?
- 4. Are pain and suffering damages taxable?
- 5. What is the law in California?
1. How are pain and suffering damages calculated?
In personal injury cases where compensation is given for non-economic losses, there is no fixed standard for determining the monetary value of a pain and suffering award.1
Accident victims or injured persons typically prove that they suffered certain physical injuries and/or mental pain. A judge or jury will then use its judgment to decide a reasonable dollar amount for pain and suffering damages.
While pain and suffering damages compensate injured persons/injury victims for subjective losses, they are often proven with objective evidence. Examples include:
- medical records/medical bills showing the extent of medical treatment a person received,
- photos of property damage and physical injuries evidencing the severity of the injury,
- comprehensive doctors’ and therapists’ notes,
- before and after videos showing the plaintiff’s activity level,
- social media posts, texts, and emails,
- testimony of friends, co-workers, and family members,
- evidence of lost work time, and
- expert testimony regarding medical suffering, bodily injury and/or brain injury, lost earning capacity, and anything else that could be relevant.
Note that many states provide caps on pain and suffering damages. If a cap exists, a judge or jury cannot award a plaintiff with a pain and suffering award above that cap.
2. Is emotional distress included in pain and suffering damages?
Yes. Emotional distress is included in pain and suffering damages.
“Emotional distress” refers to the mental impairment a person suffers following a personal injury or accident. Examples of emotional distress may include:
- lack of sleep,
- depression, and
Claimants can still receive an amount of money for pain and suffering if they suffer emotional distress without any corresponding physical injury.2
In these cases, though, it is often a good idea for a plaintiff to receive some type of mental health counseling.
Testimony of a counselor is particularly appropriate in cases in where a plaintiff has experienced significant subjective symptoms such as:
- post-traumatic stress disorder (PTSD), or
- similar symptoms that are not easy to establish with objective tests.
3. What is a pain and suffering multiplier?
A “multiplier method” refers to one common way that parties (e.g., attorneys, plaintiffs, and insurers/insurance adjusters) use to help calculate pain and suffering claims.
Under this method, a person adds together all the economic damages involved in a case. The party then multiplies that figure by a certain number (typically between 1 and 5, with 3 being most commonly used).
The specific multiplier used in a case will depend on the severity of a person’s injury. While people will use a low multiplier (like 1 or 2) in cases with mild injuries, a party will use a higher multiplier (like 4 or 5) in cases with severe injuries.
People may use a higher multiplier in cases involving:
- lifelong medical care,
- severe types of pain,
- lost wages due to a disability,
- severe injuries involving broken bones, and
- a reduced quality of life.
Example: Jim is texting while driving. As a result, he fails to stop at a stop sign and hits two pedestrians, Carrie and Mark.
As a result of the car accident, Carrie suffers a cleanly broken arm. She has medical bills of $15,000 and she misses five weeks of work at $1,000 per week. Carries economic losses thus total $20,000.
Carrie’s inconvenience was not that severe and she fully recovered from the auto accident with no scars. Her lawyer then might assign a multiplier of 2 to her case for a total personal injury settlement value of $40,000 (2 X $20,000).
Mark, on the other hand, suffers a complex fracture of his leg. His economic losses total $150,000. In addition, Mark is left with very bad scars and neuropathy (nerve pain) that might be permanent.
Because of the severity of the injury, Mark’s multiplier would be higher than Carrie’s, perhaps a 5. In that case, his settlement would be valued at $750,000 (5 X $150,000).
Carrie’s pain and suffering damages are $20,000 whereas Mark’s are $600,000.
The multiplier method for calculating pain and suffering is often contrasted with the pier diem method.
Under the latter, lawyers, plaintiffs, and an insurance company try to calculate a specific dollar amount for each day the plaintiff experiences pain and suffering because of an accident.
This daily rate is often calculated by using the injured victim’s daily earnings prior to the accident.
For example, if a plaintiff earned $300 per day prior to an injury, and experienced pain and suffering for 14 days, the plaintiff may demand $4,200 (or 14 x $300) in pain and suffering damages.
4. Are pain and suffering damages taxable?
The general rule is that the money a plaintiff receives for a personal injury case is not taxable under either state or federal law. This is true as to money for both economic and non-economic damages.
Most jurisdictions say this rule is true in cases where a plaintiff suffers some type of:
- physical injury, or
- physical sickness.
This means that if a party suffers from emotional distress (with no physical injury), his/her damage award could be taxable under the law.
5. What is the law in California?
California’s laws on pain and suffering damages generally follow the above discussion.
State law says that pain and suffering is a type of non-economic damages that a plaintiff can ask for in a personal injury case.
Other examples of these damages include compensation for:
- suffering and psychological trauma,
- emotional distress,
- loss of a limb or organ (or its use),
- loss of quality of life from a serious injury,
- inability to engage in pleasurable activities (such as hobbies or sex), and/or
- loss of enjoyment of life.
There is no fixed standard in California for deciding the value of pain and suffering damages.3 However, attorneys and plaintiffs often use the multiplier method to estimate damage amounts.
Further, California law does not impose a damage cap in most personal injury claims involving pain and suffering and other economic damages.
But some exceptions do apply.
For example, there is a $250,000 cap on “non-economic” medical malpractice damages.4 Note, though, that the cap does not apply in cases in which a healthcare provider recklessly or intentionally injured or abused a patient.
California Civil Code 3333.4 also restricts the recovery of non-economic damages in actions for negligence arising out of the operation or use of a motor vehicle as follows:
- drivers convicted of DUI may not recover non-economic damages,5
- uninsured vehicle owners cannot recover or be indemnified for noneconomic damages except those caused by drunk drivers,6
- uninsured drivers cannot recover or be indemnified for noneconomic damages under any circumstances.7
Further, Civil Code 3333.3 prohibits people from recovering any damages if they were injured while committing, or fleeing after committing, a California felony.8
For additional help…
For additional guidance or to discuss your case with one of our personal injury lawyers, we invite you or a loved one to contact our law firm at the Shouse Law Group. Our attorneys provide both free consultations and legal advice you can trust.
- There is a distinction in personal injury law between economic and non-economic damages. The former includes objective losses like medical bills, property damage, and lost wages. The latter includes more subjective losses like pain and suffering, loss of consortium, and loss of enjoyment of life.
- Note, though, that non-economic damages are more likely to be granted in a personal injury claim when there is a physical injury and: (1) the injury results in permanent disfigurement or long-term loss of function; (2) medical expenses are high; (3) injuries can be verified by x-rays, lab tests, or other objective criteria; or, (4) recovery was difficult and/or took a long time.
- See, for example, California Civil Jury Instructions (CACI) 3905A.
- California Civil Code 3333.2.
- California Civil Code 3333.4.
- California Vehicle Code 16056 sets forth minimum insurance requirements for California vehicle owners and drivers.
- See Quackenbush v. Superior Court (Congress of California Seniors) (1997) 70 Cal.Rptr.2d 271, modified on denial of rehearing, review denied, certiorari denied 119 S.Ct. 73.
- California Civil Code 3333.3.