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Charlotte NC Personal Injury — How to Prove Pain and Suffering

Jan 18, 2018 Brown Moore Personal Injury

If you have been injured in an accident in Charlotte, you can recover money damages from the wrongdoer by filing a personal injury lawsuit. Among the damages, you might be able to recover are damages for pain and suffering. Indeed, under North Carolina law, the purpose of awarding damages is to restore the victim to his or her original condition or — as the courts say — to make the victim “whole.” This has been the law in North Carolina for a very long time.

But the question of how much can be — should be — awarded for pain and suffering has always been difficult to specify. Injuries cause pain to muscles, bones ligaments, and other body parts and the pain causes suffering. How to quantify and suggest to a jury an estimated value for pain and suffering requires skill and trial experience. If you have been injured in an accident here in Charlotte, you want to have courtroom-tested attorneys who know how to gather and present the best evidence to maximize your pain and suffering recovery.

Charlotte NC Personal Injury Lawyers — Estimating “Worth” of Pain And Suffering

In practice, when presenting a closing argument to a jury, lawyers either (i) suggest to the jury a lump sum dollar amount for pain and suffering — say, $300,000 — without breaking down the number or (ii) lawyers suggest a dollar amount based on a daily dollar amount estimate multiplied by the amount of time that the victim has suffered or is expected to continue suffering into the future.

The lump-sum method is usually based on the lawyer’s use of other quantifiable damages — such as the total medical bills — as a multiplier. Logically speaking, pain and suffering can be linked to the number of days spent in a hospital, the number of surgeries required, the number of appointments for physical therapy, the number, and type of medications prescribed, etc. From the invoices from the hospital, the physician, the therapist’s office, and similar, it is possible to arrive at a very precise dollar amount for “medical bills.” From this, a multiplier can be used — from two to five is common — to arrive at a lump sum estimate for pain and suffering. Thus, if the medical bills were $100,000, arguably it is reasonable to ask for $300,000 for pain and suffering. Many factors go into deciding what multiplier to use including the nature of the accident, who is the victim, level of carelessness, evidence of recklessness (like drinking or drug use on the part of the wrongdoer), and similar factors.

The second method — the use of a per diem (daily) calculation — is specifically approved and permitted in North Carolina. See Weeks v. Holsclaw, 295 SE 2d 596 (N.C. Supreme Court 1982). As reported in that case, the lawyer for the victim made this argument to the jury:

” … let’s talk about this permanent, this pain and suffering a little bit. Now, according to my figures, it has been 608 days since the accident occurred. Let’s talk about 608 days of pain, and let’s not even talk about 24 hours a day. Let’s talk about maybe 15 hours a day. 608 days at 15 hours of pain a day. Now, ladies and gentlemen, you add this up. 9,120 hours is what I get. … 9,120 hours, ladies and gentlemen, 60 minutes an hour, I find that to be 367,200 minutes. Let us talk about, as far as the pain and suffering are concerned, fifty cents a minute in terms of what my client ought to receive. … Well, let’s talk about ten cents a minute, ten cents a minute from the time of the accident until now. I get that to be $36,720.00.”

This use of a per diem estimate was approved by the North Carolina Supreme Court, but the court added that the trial judge must instruct the jury that such per diem estimates are not evidence, that they — the jury — are not to be governed by the number of damages suggested by counsel or by whatever unit of time suggested by counsel and that it is for them — the jury — to make the ultimate decision as to the fair and just value of the victim’s pain and suffering.

As a practical matter, good personal injury lawyers will use the method that is best suited to the case. Sometimes accidents result in injuries that do not generate large medical bills but still generate large amounts of pain and suffering. A good example is an accident resulting in broken bones. Broken bones are very painful and require a long period of recuperation. However, setting a bone is relatively simple and not particularly costly in terms of medical bills. Thus, a per diem approach may be better for a broken bone. In that kind of case, a good lawyer will use daily wages and other client-specific daily cost factors — such as the cost of a gym membership that was not usable during recovery — to establish an estimate for pain and suffering.

Charlotte NC Personal Injury Lawyers — Presenting the Best Evidence; Making the Best Argument

As noted, good Charlotte personal injury lawyers will use the best method and the Charlotte NC personal injury lawyers will not rely merely on the method chosen. When proving pain and suffering, presenting the FACTS related to pain and suffering to the jury is more important than the method of estimation. Some of the FACTS include:

  • Type of injury — some injuries are more painful than others
  • The severity of injury — clearly goes to the issue of suffering
  • Nature of accident and injury — gruesome injuries will demand more damages for pain and suffering
  • Number of injuries sustained
  • Number of days in the hospital
  • Number of surgeries and/or nature of medical procedures — invasive vs. non-invasive; mild to extremely invasive
  • Area of injury — groin or injury to the uterus may justify a higher award for pain and suffering
  • Medical expert testimony — certain levels of pain are typical with respect to injury
  • Level and quantity of pain medications prescribed
  • Victim testimony
  • Friends and family testimony
  • Visual evidence of the injury
  • Age or other unique characteristics of the victim enhancing pain and suffering — small child, adult or elderly as an example
  • Impact on daily activities — aside from the per diem method, loss of mobility is evidence of pain and suffering
  • Need for physical therapy
  • Aggravating factors with respect to the wrongdoer

Charlotte NC Personal Injury Lawyers — Brown Moore & Associates

Proving pain and suffering takes a great deal of skill. If you have been injured in an accident, call the Charlotte NC personal injury attorneys at Brown Moore & Associates. We are experienced and proven personal injury lawyers with many years of obtaining excellent results for our Charlotte personal injury clients. Contact our office today.