How Is Pain and Suffering Calculated?

Pain and suffering is a type of noneconomic damages, and it is harder to calculate than economic damages like medical bills and lost wages, which come with a dollar amount printed on a bill or a pay stub. Pain and suffering is calculated from the evidence of how your injury has affected your body and your daily life, like how long the pain lasts and the activities you can no longer do. After an injury caused by someone else's carelessness, the amount you receive for pain and suffering comes out of settlement negotiations with the insurance company or out of a jury's verdict if your case goes to trial.

Insurance adjusters and injury attorneys use formulas to arrive at a starting number, and the evidence of your injury can raise or lower the number in negotiations and at trial. Washington places no cap on what a jury can award for pain and suffering, which is not the case in every state.

Losses Covered by Pain and Suffering Damages

Pain and suffering can cover losses like the following:

• Physical pain from the injury and from the recovery
• Mental and emotional suffering, like the anxiety, fear, and sleep problems that can follow an injury
• Physical impairment or disability, or limits on what your body can do after the injury
• Disfigurement, like scarring or the loss of a limb
• Loss of enjoyment of life, which covers activities you can no longer do, or can no longer do the way you did before you were hurt
• Inconvenience, like the time spent at medical appointments and the daily tasks you need help with

Pain and suffering also covers harm you will, with reasonable probability, experience in the future, and the evidence of future harm can come from your own testimony about pain and limits that are still ongoing or from a doctor's opinion that your pain or physical limits are expected to continue.

Formulas Used to Put a Number on Pain and Suffering

Insurance adjusters and injury attorneys usually use one of two formulas to put a starting number on pain and suffering in settlement talks. Each formula has weak points the other side can use to argue for a different number.

The Multiplier Method

The multiplier method takes your medical bills or your total economic damages and multiplies the total by a number based on how serious the injury is. Multipliers typically fall anywhere between 1.5 and 5, with lower numbers for injuries that heal completely and higher numbers for serious or permanent injuries, so $40,000 in medical bills and a multiplier of 3 puts pain and suffering at $120,000.

A multiplier ties your pain to the cost of your treatment, and an injury that caused months of pain but needed only low-cost care, like physical therapy and prescription medication, produces a low number from the math.

The Per Diem Method

Per diem means per day. The per diem method assigns a dollar amount to each day you live with pain from the injury and multiplies the daily rate by the number of days until you recover, so $150 a day for 240 days of recovery puts pain and suffering at $36,000.

No rule sets the daily rate, and the formula is harder to apply to a permanent injury because the pain has no end date to count to.

Neither Formula Sets the Final Number

No law requires an insurance company or a jury to use the multiplier or per diem method, and the number either formula produces is a starting point. In settlement negotiations, the adjuster and your attorney can each use a formula to support a different number, and your attorney can point to the evidence of your pain and physical limits to argue for a higher multiplier or daily rate. If your case goes to trial, jurors set the amount from the evidence without a formula, and the Washington Supreme Court has upheld a verdict after an attorney suggested a per diem figure in closing argument, with the trial judge able to tell the jury that an attorney's figures are argument and not evidence.

Freeman Law Firm has recovered millions for injured victims across Washington, and we take cases to trial when an insurance company will not pay what the evidence supports. We prepare the evidence of your pain and suffering for a jury while settlement talks are still going on, which lets us press for the highest amount the facts of your case support.

Evidence That Can Raise or Lower a Pain and Suffering Award

Evidence That Can Support a Higher Amount

Evidence like the following can support a higher amount in settlement negotiations and at trial:

• Treatment notes from each medical visit that describe your symptoms as they change over time
• An injury that needs surgery, takes months to heal, or leaves permanent limits, since the pain lasts longer and affects more of your life
• Photographs taken during recovery that record what a scar or other visible injury looked like while it healed
• Testimony from a spouse, family member, friend, or coworker who can describe what you did before the injury and what you cannot do now, which medical records do not capture
• Notes you write during recovery about your pain levels and the work or family events you missed, which preserve details you may not remember months later

Evidence That Can Lead to a Lower Amount

An insurance adjuster or defense attorney can point to the following to argue for a lower amount:

• A long gap between medical appointments, which the other side can use to argue that your pain had ended
• Skipping physical therapy or stopping treatment against your doctor's advice, which the other side can use to argue that the injury was less serious than you say
• A pre-existing condition in the same part of your body, since the other side may argue that your pain came from the old condition, although an injury that makes an old back or joint problem worse can still support pain and suffering damages for the added harm
• Social media posts or photos that appear to show you doing activities your injury limits, which an adjuster can use to question your account of your pain

Freeman Law Firm works with your doctors to document how the injury changed your condition and how long your pain is expected to last, which gives us medical proof to counter an insurance company that blames your pain on an old injury or a gap in treatment.

Washington Laws That Affect Compensation for Pain and Suffering

No Cap on Pain and Suffering in Washington

Washington law places no dollar limit on pain and suffering damages. The Legislature capped noneconomic damages in 1986 with RCW 4.56.250, and the Washington Supreme Court ruled the cap unconstitutional in Sofie v. Fibreboard Corp., 112 Wn.2d 636 (1989), because the right to a jury trial in Article I, Section 21 of the Washington Constitution includes the jury's role in setting the amount of damages. The Legislature repealed RCW 4.56.250 in 2023.

Your Share of Fault Reduces the Award

Washington follows pure comparative fault. RCW 4.22.005 reduces your damages, including pain and suffering, by your percentage of fault, and it allows you to recover even when your share of fault is larger than the other side's. A $200,000 pain and suffering amount becomes $150,000 when you are 25 percent at fault, and an insurance adjuster can apply the same reduction in settlement negotiations when the adjuster argues that you share the blame.

Which Insurance Pays for Pain and Suffering in Washington

Personal injury protection (PIP) on your own auto policy pays for medical bills, lost income, and household help. RCW 48.22.005 limits PIP payments to the losses and expenses you incur, so PIP does not pay for pain and suffering, and RCW 48.22.085 through 48.22.100 set the PIP coverage insurance companies have to offer.

Pain and suffering is paid by the at-fault driver's liability insurance, and RCW 46.29.090 sets the minimum bodily injury coverage in Washington at $25,000 per person and $50,000 per accident. When the at-fault driver has no insurance or too little, underinsured motorist coverage on your own policy can pay the damages you could recover from the driver. RCW 48.22.030 requires Washington auto policies to include underinsured motorist coverage unless you or your spouse rejected it in writing.

Get Answers About Your Pain and Suffering Damages

Freeman Law Firm has recovered millions for injured victims across Washington. Our attorneys can review your medical records and any settlement offer you have received and answer your questions about the pain and suffering part of your case, such as whether the offer accounts for future pain and any permanent limits from your injury.

Call (253) 383-4500 for a free consultation, and you'll pay nothing unless we obtain financial recovery on your behalf.

References and Additional Reading

• Sofie v. Fibreboard Corp., 112 Wn.2d 636 (1989): https://law.justia.com/cases/washington/supreme-court/1989/54610-0-1.html
• Bitzan v. Parisi, 88 Wn.2d 116 (1977): https://law.justia.com/cases/washington/supreme-court/1977/44234-1.html
• Jones v. Hogan, 56 Wn.2d 23 (1960): https://law.justia.com/cases/washington/supreme-court/1960/35058-1.html
• RCW 4.56.250 (noneconomic damages cap, repealed by 2023 c 102 § 5): https://app.leg.wa.gov/rcw/dispo.aspx?cite=4.56.250
• RCW 4.22.005 (effect of contributory fault): https://app.leg.wa.gov/RCW/default.aspx?cite=4.22.005
• RCW 48.22.005 (personal injury protection definitions): https://app.leg.wa.gov/RCW/default.aspx?cite=48.22.005
• RCW 48.22.085 (personal injury protection offer and rejection): https://app.leg.wa.gov/RCW/default.aspx?cite=48.22.085
• RCW 48.22.095 (minimum personal injury protection benefits): https://app.leg.wa.gov/RCW/default.aspx?cite=48.22.095
• RCW 48.22.100 (optional personal injury protection benefits): https://app.leg.wa.gov/RCW/default.aspx?cite=48.22.100
• RCW 48.22.030 (underinsured motorist coverage): https://app.leg.wa.gov/RCW/default.aspx?cite=48.22.030
• RCW 46.29.090 (minimum liability limits): https://app.leg.wa.gov/RCW/default.aspx?cite=46.29.090
• FindLaw, What Is a Pain and Suffering Multiplier?: https://www.findlaw.com/injury/car-accidents/car-accident-pain-and-suffering-damages.html
• Nolo, How Does an Insurance Company Value My Personal Injury Case?: https://www.nolo.com/legal-encyclopedia/how-do-insurers-value-injury-29976.html