Pain & Suffering Calculation in Texas How pain and suffering is calculated in Texas in a personal injury case will depend on where you are in the timeline of your case. The approach to calculating pain and suffering before a trial and during trial are not the same. Insurance companies typically use claims software to calculate pain and suffering. On the other hand, a jury does not use any special formulas, but only their own best judgment based on the evidence presented to them. However, keep in mind that there are many steps that are required before you go to court for a trial. Many personal injury cases settle even before a lawsuit is filed and most settle before trial. Before a trial you may be negotiating with the insurance company to reach a reasonable settlement amount. Alternatively, if your case goes to trial, your attorney may be arguing your case before a jury or judge. We will discuss how pain and suffering is calculated in both situations, how you can maximize your pain and suffering in both instances, how you can prove pain and suffering in court, and look at some real-world Texas settlements and jury verdicts for examples. But first we need to define some terms to better understand Texas pain and suffering law. What Are Damages? Before we can get into calculating pain and suffering, we need to learn some key legal concepts. In any personal injury case based in “negligence,” you need to prove “damages.” “Damages” are the actual harm or injury as a result of the responsible party’s carelessness. These are not presumed in cases where you are claiming someone else’s negligence caused your injuries. You need to prove them with evidence, such as with medical bills. “Compensatory damages” are those that are meant to compensate you for your losses, intending to place you back where you were prior to the accident. In Texas, there are two types of compensatory damages: Special Damages (economic damages) and General Damages (non-economic damages). What Are Special Damages? Special damages, also known as economic damages, are those that can be easily quantifiable. These damages can be proven by medical bills, pay-stubs, or some other evidence showing out-of-pocket expenses that flowed from the injury. These damages are intended to compensate the claimant for monetary losses that were suffered. Special damages include past and future medical expenses, past lost wages, and future loss of earnings. What Are General Damages? General damages are damages that are not so easy to quantify. They are also meant to compensate the claimant for losses, but for those that are not quantified specifically in a dollar value. Texas Civil Practice and Remedies Code Section 41.001(12) specifically lists what are considered general damages, including: Physical pain and suffering; Mental or emotional pain or anguish; Loss of consortium; Disfigurement; Physical impairment; Loss of companionship and society; Inconvenience; Loss of enjoyment of life; Injury to reputation; and All other nonpecuniary losses of any kind other than exemplary damages. What is “Pain & Suffering”? Now that we know how pain and suffering is categorized under the law, what exactly is pain and suffering, anyhow? Pain and suffering damages are awarded for the purpose of compensating a claimant for the physical pain that he/she endures as a result of an injury. This is distinguished from the mental aspects of an injury, known as “mental or emotional pain or anguish.” Pain and suffering strictly concerns the actual physical pain that an injured party feels from a physical injury. Although pain and suffering and mental or emotional pain or anguish are two distinct types of damages, they are often lumped together when submitted to the jury. However, there are many Texas cases that recognize that these are two distinct elements of a plaintiff’s damages. (See Daniels v. Univ. of Tex. Health Science Center of Tyler, No. 12-03-00399-CV, 2005 WL 1642969, at *2 (Tex. App.—Tyler July 13, 2005, no pet.)(mem. op.). Texas law allows recovery for physical pain and suffering in the past and future (See A.T. & S.F. Ry. Co. v. O’Merry, 727 S.W.2d 596, 599-600 (Tex. App. Houston [1st Dist.] 1987, no writ). As you guessed, quantifying someone’s pain in dollars is difficult. Texas courts have stated that there is no definite way to measure pain and suffering in terms of money but that the jury should arrive at some fair compensation based on its “common knowledge and sense of justice.” Hernandez v. Baucum, 344 S.W.2d 498, 500 (Tex. Civ. App. 1961). Below, we will discuss how pain and suffering are calculated both pre-trial and during trial. Calculating Pain & Suffering Pre-Trial (Claims Software) Before a trial, either before or after a lawsuit is filed, you will be negotiating your case with the insurance company. The claims adjuster will be valuing your case based on a variety of factors. Typically, the large insurance companies use claims software programs such as Colossus, Mitchell Claim IQ, and Claims Outcome Advisor (COA) to calculate settlement offers, especially on soft tissue injury cases (e.g., whiplash, sprains, and strains). They’ll enter in medical billing codes, injury codes, and several other factors to arrive at a settlement range. Typically, these soft-tissue injury cases are handled by low-level adjusters and these adjusters are prohibited from offering anything outside the claims software settlement range, unless you can present “new” information to them. Insurance companies use this software at a varying degree with some heavily relying on the settlement ranges that are provided, such as Allstate. With more serious injuries, the reliance on this software is not as significant. As discussed above, pain and suffering is part of what are called “general damages” and are considered within the software’s algorithm. The nature of the injury and treatment will have a large effect on the amount of pain and suffering and total general damages that is given in any case. Muscle sprains and strains will yield little pain and suffering compensation. In many cases, the insurance company will offer a nominal amount,...Read More
Calm • Dedicated • Persistent.
We understand the ins and outs of personal injury, and our team approaches each client’s case with the same determination to get the best result possible. We’re up front with clients, communication is simple and easy. Each member of our team focuses on what’s best for the client and how we can achieve that result. Through consistent hard-work and outstanding results, we’re able to earn client’s loyalty.
Small Firm Service • Big Results.
We connect with our clients on an individual basis. Each case we take gets the same focus, the same attention to detail, and the same dedication to a successful result. Our team of personal injury lawyers is equipped and qualified to handle a wide variety of injury cases. Finally, we believe that every injury case is important – if you were hurt, we want to help.
Meet the Team
Milano Legal Group PLLC was founded by Anthony J. Milano. Anthony is a dedicated personal injury attorney that handles auto accidents, truck accidents, motorcycle accidents, pedestrian accidents, wrongful death cases, and other personal injury cases. Anthony provides a hands-on approach to each case that comes through the door and is intimately involved in each and every case, no matter the size or seriousness of injury. From engagement to handling the property damage to settlement or verdict, Anthony personally manages each case to the finish line. Anthony obtained a bachelor’s degree in business economics from the University of Arizona Eller College of Management. He went on to attend South Texas College of Law in Houston, where he received his Doctor of Jurisprudence. Anthony is licensed to practice law in Texas and Florida.
- South Texas College of Law, Doctor of Jurisprudence
- University of Arizona, B.S.B.A. (Business Economics)
- State Bar of Texas
- State Bar of Florida
Elif Dag-Milano, LL.M.
Elif is an Attorney at Milano Legal Group. Elif provides clients with passionate, results-driven representation in auto accidents, truck accidents, motorcycle accidents, 18-wheeler/commercial vehicle accidents, pedestrian accidents, product defect accidents, slip & falls/premises liability, and wrongful death cases. Elif has extensive experience in dealing with insurance companies and she ensures that her clients gets the maximum recovery arising out of their personal injury and property damage claims. Elif is closely involved in each case from pre-litigation to appeal.
Prior to joining Milano Legal Group, Elif has several years of litigation experience working as an In-House Legal Counsel for the leading consumer electronics retailer in Europe with 65K employees, 22B € in revenue, and operations in 15 countries. She oversaw multinational-national judicial transactions and advised executive managers on legal and strategic solutions to drive business objectives forward through risk mitigation, regulatory, and statutory compliance and process improvements.
- University of Houston Law Center, Master of Laws
- University of Istanbul Faculty of Law, Master of Laws
- South Texas College of Law, Exchange Student
- University of Istanbul Faculty of Law, Bachelor of Laws
- State Bar of Texas
- Istanbul Bar Association
- Union of Turkish Bars
David Wilkison is an Arizona-based attorney specializing in personal injury and criminal defense. David is Of Counsel and supports litigation within the State of Arizona. Mr. Wilkison has years of experience working on high level felony cases. From DUI to First Degree Murder, Mr. Wilkison has dealt with prosecutors and law enforcement to get the best possible outcome for his clients. Mr. Wilkison has litigated criminal matters ranging from misdemeanors to felonies, with the emphasis on each case being client satisfaction. He has represented clients in misdemeanor and superior courts, MVD Executive Hearings, Rule 11 competency hearings, Simpson hearings and appellate courts. He has handled over 1,000 criminal cases and has argued in front of the Arizona Court Appeals for Special Actions. Mr. Wilkison prides himself on being part of the 5% of all attorneys in the nation that take the legal battle to the courtroom and litigate. He is passionate about his career and it shows.
- Phoenix School of Law, Doctor of Jurisprudence
- University of Arizona, Psychology
- State Bar of Arizona