Putting a Dollar Value on “Pain and Suffering"
The most common question I get as an attorney is: "How Much is My Case Worth?"
Indiana law establishes the amount of damages that a person can recover in any jury trial in Indiana from a business or individual who negligently caused his or her injuries. (Remember, "negligence" means the defendant -- whether a business or a person -- did not act with reasonable care under the circumstances. This can mean doing something unreasonable or not doing something other reasonable businesses would do in similar circumstances -- like throwing down salt during icy weather or failing to plow a snowy parking lot).
Your ability to recover any amount is not hindered if you settle your case -- as long as the parties agree (and the victim is not a minor) -- the settlement will stand.
But, jury trials are different.
How does a jury calculate the value of your case?
Well, some do it well and some not so well.
But, they receive instructions on what they can consider from the Judge.
A Judge will remind the jury there are two types of damages that can be recovered under Indiana law: "economic" damages such as medical bills, lost wages, property damages, trips to the doctor and the like; and "non-economic" damages such as mental anguish, pain and suffering, and the loss of quality of life.
While economic damages can be relatively easy to calculate and recover (but see the Stanley v. Walker case for an explanation of differing opinions about the "true" value of medical bills/services rendered), it is in the "non-economic" damages that big verdicts are won.
Call us for a FREE list of our case results in jury trials showing how much you might be able to recover. We'll e-mail or send it out right away.
Those non-economic damages can be very difficult to quantify. In fact, a Judge will tell a jury that the non-economic damages in any verdict must be done reasonably -- but are not required to be a strict mathematical calculation.
Pain and suffering damages are usually determined based upon common sense of the jury -- taking into account how the slip and fall happened and why it happened. It also takes into account the nature and extent of your injury: was it permanent? did it leave a scar? will you require future medical care? will the injury result in further limitations? will it cause pain on a daily basis?
Here's an example of the instructions a jury will actually hear in an Indiana slip and fall jury trial:
703 General Elements of Damages
If you decide from the greater weight of the evidence that defendant is liable to plaintiff, then you must decide the amount of money that will fairly compensate plaintiff.
In deciding the amount of money you award, you may consider:
- the nature and extent of the injury, and the effect of the injury on the plaintiff's ability to function as a whole person;
- whether the injuries are temporary or permanent;
- the value of lost time and earnings and loss or impairment of earning capacity;
- the physical pain and mental suffering plaintiff has experienced and will experience in the future as a result of the injuries;
- the reasonable value of necessary medical care, treatment, and services plaintiff incurred and will incur in the future as a result of the injuries;
- the aggravation of a pre-existing condition;
- the disfigurement and or deformity resulting from the injuries;
- and the life expectancy of plaintiff.
704 Pain and Suffering
Plaintiff does not have to present evidence of the dollar value of [his][her] pain, suffering, mental anguish, or scarring/disfigurement or deformity. These types of damages need not be proven to a mathematical certainty.
Plaintiff must prove the nature and extent of these types of damages, however. The dollar value, if any, of these damages is left to your good judgment.
Whew, that's a mouthful.
What does that all mean?
The good news is that a jury is not required to have the Plaintiff prove damages to any proven mathematical certainty.
The second piece of good news is that both attorneys -- us for the Plaintiff and the Defendant's attorney -- get to provide methods and examples of ways the jury can decide the value of your case in closing arguments. We have tried and true methods of doing that.
The bottom line is that the more severe the injury -- the more likely you are to recover bigger damages.
But, that's not always the case.
Psychological studies have shown that the defendant's conduct in causing the injury can heighten the jury's verdict subconsciously. So, if the Defendant showed a blatant disregard for the safety of the public in general or towards this Plaintiff in particular -- a jury can subconsciously increase an award as a sort of "quasi"-punitive damages award -- even though punitive damages were not to be awarded per the Judge's instructions.
That's one explanation for big jury awards in the $$$ Millions of Dollars range. A big injury followed by bad defendant's conduct.
I've been there plenty of times.
Yes, You can Recover Damages Even if all Your Medical Bills Were Paid by Medicare
Even if your medical bills are covered by Medicare, Indiana law says that you can recover for pain and suffering the overall effect your injury has had upon the quality of your life.
Don't assume just because medical bills were paid, that you cannot seek full compensation for your slip and fall injuries.
In fact, Medicare usually pays a reduced rate on your medical bills compared to an uninsured person.
Indiana law in the case of Stanley v. Walker allowed defense lawyers to present evidence of the reduced rates to a jury.
But, Indiana law also recently ruled that the injured slip and fall victim and her attorney also gets to present evidence of the full amount that was chaged -- before write-offs -- so that they jury can decide what is fair compensation for the injuries suffered.
We can help explain the current laws and whether your case will be subject to them.
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