Before October 1, 2021, the day that California Governor Gavin Newsom signed Senate Bill 447 (SB 447) into law, a decedent’s personal representatives or successors-in-interest could not recover damages for the decedent’s pain, suffering, or disfigurement in a survival action. Now, this has changed, and these parties can recover pain and suffering as part of the prayer for relief of a survival claim. With the passing of SB 447, only four states -Arizona, Colorado, Florida, and Idaho - do not allow a deceased individual’s successors-in-interest to recover for the decedent’s pain and suffering. What is pain and suffering as a component of a personal injury claim?
Damages for pain and suffering are distinct from damages for personal injuries and other types of damages like punitive damages. Pain and suffering may be a component of damages in personal injury cases including motor vehicle accidents, medical malpractice, intentional torts, and others. Aside from supporting evidence and the amount of the plaintiff’s economic losses in the form of medical costs, the severity of the injury and the mental state (intentional, reckless) of the defendant affect an award for pain and suffering.
Some personal injury attorneys may request an award for pain and suffering using a multiplier based on the severity of the injury. This multiplier may be from one to five and is applied to the amount of actual damages. For example, if damages are $4,000 and the injuries are moderately severe, a plaintiff may request a pain and suffering award of $12,000.
Other personal injury attorneys assign a dollar amount for each day from the date of the accident to the estimated date of the injured party’s anticipated maximum recovery. Insurance companies, defense lawyers, and courts are under no legal obligation to calculate pain and suffering using these methods.
Perhaps the most important factor in proving pain and suffering is the presence of a physical injury. Typically, a court or jury is more likely to award non-economic damages if there is a physical injury, especially if such injury is accompanied by permanent disfigurement or loss of function. A physical injury may be verified objectively with X-rays, laboratory tests, or other medical procedures that will further substantiate the presence of pain and suffering.
Plaintiffs who can present evidence of a diagnosis that they are suffering symptoms of illnesses such as post-traumatic stress syndrome (PTSD), depression, anxiety, and insomnia are more likely to receive an award for pain and suffering. The testimony of a mental health professional may be necessary to establish these conditions.
If you have suffered an injury in any type of accident, and another party is responsible for this harm, you have a right to compensatory damages for your losses. The personal injury attorneys at Moss Bollinger can help you assert your valuable right to compensation. Moss Bollinger is dedicated to protecting and asserting the rights of our clients. Call 866-942-7974 today for a free consultation or contact us online.