Nevada law allows you to recover non-economic damages such as pain and suffering in a personal injury lawsuit. Non-economic damages are ones that are difficult to quantify with a specific monetary value. This category includes things such as:
- Physical impairment,
- Inability to engage in non-economic activities (such as hobbies or sex), or
- General loss of enjoyment of life.1
A physical injury is not required in order to recover damages for pain and suffering in Nevada. However, it makes the recovery more likely. It is not uncommon, for instance, for plaintiffs to be awarded non-economic damages following:
- A serious injury,
- A catastrophic injury,
- A Nevada car accident,
- A disfiguring dog bite,
- An injury from a dangerous product, or even
- A slip-and-fall or other injury at a Las Vegas hotel.
To help you better understand the law on damages for pain and suffering and the auto accident settlement formula, our Nevada personal injury lawyers discuss, below:
- 1. Is there a limit to the amount of pain and suffering damages in Nevada?
- 2. How do I prove that I endured pain and suffering?
- 3. Do insurance companies use a pain and suffering formula?
1. Is there a limit to the amount of pain and suffering damages in Nevada?
Except in medical malpractice cases, there is no upper limit to the amount you can recover for non-economic damages in a Nevada lawsuit.
The only requirement in Nevada is that damages for pain, suffering, disfigurement, etc. must be fair and reasonable.
If you simply had a few sleepless nights while you waited to find out whether your toe was fractured, your damages for pain and suffering are likely to be minimal.
On the other hand, if you required reconstructive surgery and months of physical therapy, your recovery will be much higher.
And while a physical injury is not required, non-economic damages tend to increase when:
- There is a permanent disfigurement or loss of function,
- Medical bills are high,
- Physical injuries are verifiable by medical tests such as x-rays, or
- Recovery was difficult and/or took a long time.
Example: Mary’s wrist is shattered when her car is involved in an accident with a truck on the Las Vegas Beltway. Repairing her wrist requires several surgeries and almost a year of painful physical therapy. Even so, Mary never fully recovers her grip strength or range of motion and she is left with permanent scars. Because the injury is externally verifiable and the damage is permanent, then as long as Mary can prove that the truck driver was responsible (or mostly responsible) for the accident, she has a good case for recovering damages for her pain, suffering and other non-economic losses.
1.1. Cap on pain and suffering in Nevada medical malpractice cases
In Nevada, medical malpractice is officially known as “professional negligence.”
In a Nevada professional negligence case, non-economic damages such as pain and suffering are capped at $350,000, regardless of the number of plaintiffs, defendants or theories upon which liability may be based.2
The cap was approved by Nevada voters as part of 2004’s “Keep Our Doctors in Nevada” ballot initiative (Question No. 3). The Nevada Supreme Court has held that this cap is constitutional.3
2. How do I prove that I endured pain and suffering?
Non-economic damages are subjective. “Proving” them is a matter of convincing the jury (or the defendant’s insurer or lawyer) to award them.
Typical ways of proving pain and suffering include:
X-rays and similar visual test results are particularly powerful in making the subjective experience of an injury real for the jury. However, even where injuries are less obvious,
- the more complete the medical record,
- the more likely you are to receive damages for pain and suffering.
It is extremely important, therefore, to have your doctor and therapist(s) take comprehensive treatment notes. Your Las Vegas personal injury attorney can help educate your healthcare professionals on what type of documentation is needed to establish your claim.
You should also be sure to sign in for every appointment you have and not to miss appointments.
Photographs and videos
Before and after photos or videos can be an excellent way to illustrate non-economic losses. If you are doing rehabilitative therapy, it may be helpful to videotape some of your sessions so that the jury can see what you have had to go through.
You will need to make sure your therapist consents to be videotaped. Ideally, they should also be available to testify. Your attorney can make inquiries on your behalf if doing so makes you uncomfortable.
Past social media posts, texts and emails
Your social media presence can often make or break your case for non-economic damages. You should not rely on privacy settings to protect yourself.
Posting a video of yourself skiing on vacation can undermine your claim that you are suffering. On the other hand, while not dispositive, evidence that you joined a group for dealing with a certain type of pain or recovery may bolster your doctor’s testimony.
Testimony of friends, family, therapists and co-workers
While you are perfectly capable of testifying to your own suffering, it is more powerful to have other people do it. Most effective of all can be vignettes illustrating how your life has changed since an accident or injury.
For instance, perhaps you have stopped going to social events or participating in your usual activities. Sometimes just knowing you have a group of people willing to testify on your behalf can inspire an insurance adjuster to increase a settlement offer.
An experienced Las Vegas injury lawyer can often help you obtain signed declarations in the proper form.
Treatment by a mental health professional
Counseling is not required for pain and suffering to be awarded, but is usually necessary when there is an absence of physical injury. If you are claiming injuries such as insomnia, anxiety or depression, a therapist can explain to the jury why such claims are real and exceptional.
3. Do insurance companies use a pain and suffering formula?
The good news is that Nevada pain and suffering settlement amounts are negotiable.
However, many insurers do use a computer to tell them what is an acceptable settlement amount in a Nevada personal injury lawsuit.
You can approximate these calculations using either of two common historical methods for calculating pain and suffering damages.
Multiply your compensatory damages
The first method is to multiply the compensatory (actual) damages by a number between 1 and 5, depending on how serious the injury was.
Example: Jim’s leg gets broken in an Uber accident in Las Vegas when his driver runs a red light. The injury requires several months of physical therapy, but Jim’s leg fully heals. Jim’s medical bills, rehab and lost wages total approximately $20,000. After extended negotiation, Jim’s attorney and the insurance adjuster settle on a multiplier of 3. If Jim approves of this out-of-court settlement the insurance company will write him a check for 3 x $20,000, for a total settlement of $60,000.
The more serious and long-term the injury and the more painful the treatment, the higher the number you would use. Physical injuries that can be proven with x-rays, photos and test results usually merit a higher multiplier than purely subjective injuries (such as depression or insomnia).
Very large awards of pain and suffering damages are sometimes paid out over a longer period time by way of a structured settlement.
“Per diem” method
The second method is the so-called “per diem” (per day) method. Under this approach, you would ask for a certain amount of money for each day you experienced pain and suffering.
For instance – if you broke your leg in an accident and it took 60 days before it stopped hurting, you might ask for $150/day ($9,000 total) in addition to your compensatory damages. In the above example, this means Jim would receive $20,000 + $9,000 for a total settlement of $29,000.
Ultimately, however, what you receive as a personal injury settlement in Nevada is likely to be the result of a negotiation in which your attorney must establish several factors, including:
- Your out-of-pocket costs;
- The severity of your injuries;
- The seriousness of the defendant’s wrongdoing;
- The strength of your case; and
- The likelihood of your taking the case to trial.
For additional help…
If you or someone you know has experienced pain and suffering as the result of an accident, malpractice, a dangerous product or another wrongful act, we invite you to contact us for a consultation.
Our experienced Las Vegas personal injury lawyers can help you determine whether you have a good case and how much it is worth.
To schedule your consultation, call us or fill out the form on this page.
- See NRS 41A.011.
- NRS 41A.035.
- Tam v. Eighth Jud. Dist. Ct. (2015) 358 P.3d 234131 Nev. Adv. Op. 80.