The Per Diem Method: How To Calculate Pain and Suffering Damages

The Per Diem Method is a strategic approach employed in personal injury cases to calculate general damages, specifically those associated with pain and suffering. The term “Per Diem” is derived from Latin, meaning “per day”, and the method essentially assigns a daily monetary value to the pain, discomfort, and distress experienced by the victim post-injury. This value is then multiplied by the duration of the victim’s healing process to derive the total compensation for general damages.

What are Pain and Suffering Damages?

Pain and suffering damages are a type of non-economic damages awarded in personal injury cases. These damages are meant to compensate the plaintiff for the physical pain and emotional distress caused by the injury. Unlike economic damages, which cover quantifiable losses such as medical bills or lost wages, pain and suffering damages are subjective and can be more challenging to calculate, thus the use of strategies like the Per Diem method.

Physical Pain and Suffering

Physical pain and suffering refers to the actual physical discomfort and pain experienced by an injury victim. Examples of physical pain and suffering in personal injury claims include:

  • Severe pain from joint injuries sustained in the accident
  • Chronic back or neck pain due to a whiplash injury
  • Intense headache or migraines caused by a traumatic head injury
  • Discomfort from surgical procedures or physical therapy needed to treat the injury
  • Permanent physical impairments, such as loss of a limb, paralysis, or scarring and disfigurement
  • Day-to-day discomfort from the injury, such as difficulties in sleeping, walking, or performing normal activities
  • Ongoing pain due to the slow healing of the injury or the need for additional surgeries in the future

Emotional and Mental Pain and Suffering

Emotional or mental pain and suffering covers any distress, anxiety, depression, or trauma associated with the injury. Mental pain and suffering damages are intended to compensate and injury victim for the psychological impact of their injuries, such as:

  • Chronic feelings of fear, anxiety or depression following the traumatic event
  • Emotional distress due to disfigurement or physical disability resulting from the injury
  • Post-traumatic stress disorder (PTSD) that develops after experiencing a particularly traumatic accident
  • Loss of enjoyment in life or inability to participate in previously enjoyed activities
  • Feelings of humiliation or embarrassment due to physical changes from the injury
  • Difficulty in maintaining personal relationships due to emotional stress
  • Insomnia or sleep disorders resulting from constant worry or anxiety
  • Development of phobias related to the accident, such as fear of driving or fear of certain places.

Since pain & suffering damages do not have a definitive monetary value, injury attorneys and insurance companies have created methods of estimating their value, such as the Per Diem method – based off jury verdicts.

How to Decide on a Per Diem Amount in Your Personal Injury Case

Deciding on a Per Diem amount in a personal injury case requires careful consideration. The selected daily rate should be reasonable and justifiable, reflecting the pain and suffering endured by the victim. For example, $200 or a typical day’s wages for the injury victim are common rates used by attorneys.

Several factors are typically taken into account to arrive at a fair Per Diem rate:

  1. Severity of the Injury:  Injuries causing severe pain and significant disruption to daily life should command higher daily rates.
  2. Duration of the Recovery:  Lengthier recoveries, implying prolonged periods of suffering, may merit higher Per Diem rates.
  3. Impact on Quality of Life:  If the injury has resulted in permanent disability or has significantly diminished the victim’s quality of life, a higher daily rate may be justified.
  4. Comparative Jury Verdicts:  Reviewing jury verdicts for similar cases in your jurisdiction can provide a benchmark for determining a reasonable Per Diem rate.

It is crucial to note that while the Per Diem method offers a systematic approach to calculating pain and suffering, it is not a guaranteed formula for success. Courts or insurance companies may not necessarily accept your proposed Per Diem rate. Therefore, the assistance of a skilled personal injury attorney can be instrumental in arguing the rationale behind your determined daily rate and ensuring you receive fair compensation for your pain and suffering.

Why You Should Consider Using Ranges for Per Diem Calculations

Utilizing a range for Per Diem calculations offers a more flexible approach, allowing for a spectrum of potential compensation that aligns with the diverse perspectives of different jurors. By offering a range – for example, suggesting a daily rate between $200 and $300 rather than a static $250 – the attorney can accommodate the socioeconomic diversity among the jury.

Jurors earning a higher income might lean towards the higher end of the range, while those with a lower income may find the lower end more reasonable. This approach, therefore, provides room for individual interpretation, which could lead to a more unanimously agreed-upon verdict. Moreover, a range can also better encapsulate the varying degrees of pain and suffering the victim may experience on different days, offering a more realistic representation of their experience.

However, presenting a range should not compromise the compelling justification for the proposed amounts – the logic behind each end of the range must be diligently explained to be effective. Therefore, when handled carefully, presenting a Per Diem rate range can be a strategic move in personal injury cases, potentially contributing to achieving a fairer and more satisfactory compensation for pain and suffering.

What Factors Justify a High Per Diem Rate?

Several circumstances might justify a high Per Diem rate when estimating compensation for pain and suffering in a personal injury case. These factors are directly related to the severity and long-term impact of the injury on the plaintiff’s life:

  • Existence of Permanent Disability:  If the injury has resulted in lifelong impairment or disability, this dramatically increases the daily value.
  • High Level of Physical Pain:  If the pain level is extreme, this could significantly boost the daily rate.
  • Long Recovery Period:  The longer the recovery period, the higher the daily value, as the victim must endure discomfort and distress for an extended period.
  • Impact on Mental Health:  The injury’s impact on the victim’s mental health can also necessitate a higher daily rate. This could include significant anxiety, depression, PTSD, or other mental health concerns stemming from the injury.
  • Loss of Enjoyment of Life:  If the injury significantly interferes with the victim’s ability to enjoy life, including hobbies, recreational activities, or social interactions, this can justify a higher daily rate.
  • Impact on Career and Earnings:  If the injury has negatively affected the victim’s career, possibly hindering their ability to earn a living, this should be reflected in the daily rate.

In conclusion, when determining a Per Diem rate in a personal injury case, it is important to thoroughly consider the victim’s full range of experiences and impacts due to the injury. The more severe and wide-ranging these impacts, the higher the justifiable daily rate. Therefore, it’s crucial to work with a knowledgeable personal injury attorney who can effectively argue these points.

How Using a High Per Diem Rate Can Backfire

While a high Per Diem rate can substantially increase the general damages awarded for pain and suffering in a personal injury case, it can backfire if not appropriately justified. Setting a high daily rate without a substantial rationale may be viewed as an attempt to inflate the claim unfairly, leading to skepticism from insurance adjusters, judges, or jury members. If perceived as unreasonable or greedy, this can negatively impact the credibility of the entire claim.

There’s a risk of the court or insurance company rejecting the proposed Per Diem rate outright, opting for a lower daily rate or disregarding the Per Diem calculation altogether. Furthermore, an exorbitant Per Diem claim might provoke a more rigorous scrutiny of all aspects of the case, leading to a more contested negotiation process. Therefore, determining a Per Diem rate requires a careful balance – it should adequately reflect the victim’s pain and suffering, without appearing arbitrary or excessive.

Approaches for Justifying Your Per Diem Rate to Jurors

In order to bring the jurors closer to the experiences of a personal injury victim, it can be helpful to pose two moral questions that underscore the involuntary nature of the victim’s pain and suffering, as well as the financial value placed on such distress.

  1. What Amount Would You Pay to End Unwilling Suffering? Imagine the suffering and pain were inflicted upon you without your consent. How much would you be willing to pay to end such suffering immediately? This question invites jurors to put themselves in the shoes of the victim and consider the value they would place on relief from pain and suffering.
  2. What Compensation Would You Require to Willingly Accept Suffering? Conversely, consider what amount of money you would require to willingly accept the pain and suffering that the victim experienced. A person’s resistance to pain, their mental resilience, and the consideration of the toll these experiences would take on their lifestyle and personal relationships all factor into this equation. This second question encourages jurors to think about the monetary value they would assign to willingly endure a similar ordeal, underscoring the profound impact of the victim’s experiences.

By contemplating these moral questions, jurors can gain a deeper understanding of the victim’s suffering and the justification for a substantial Per Diem rate in the compensation for general damages. It’s not an easy task to quantify pain and suffering, but these questions offer a meaningful way to rationalize the economic valuation of such non-tangible damages.

Personal Income and Per Diem Calculations: The Juror’s Perspective

The Per Diem method, by its design, inherently factors in the personal perspective of each juror. Each juror’s personal income can significantly influence the Per Diem rate they deem reasonable for a day without pain and suffering. For a juror with a high income, a $200 daily rate may seem minimal, and they may be inclined to award a higher Per Diem rate. Conversely, for a juror earning a lower income, a $200 daily rate might represent a significant amount, leading them to be more conservative in their Per Diem judgement.

This discrepancy underscores the need for carefully selecting a reasonable and justifiable Per Diem rate – one that accounts for the severity of the victim’s pain and suffering, but also considers the income diversity among jurors. It’s a delicate balance to strike, and once again emphasizes the importance of skilled legal representation in a personal injury case. An experienced attorney can thoughtfully present the case for a specific Per Diem rate in a way that resonates with jurors from varying economic backgrounds, increasing the likelihood of a fair and satisfactory verdict.

Example of a Per Diem Method Calculation

Let’s look at an example of a Per Diem Calculation for a personal injury case. Assume the victim, after a car accident, has endured 200 days of pain and suffering. After considering the severity and breadth of the victim’s experiences, including physical pain, impact on mental health, loss of enjoyment in life, and impact on career, the attorney proposes a daily rate of $250 for pain and suffering. The Per Diem calculation for general damages would then be:

$250 (Daily Rate) x 200 (Days of Suffering) = $50,000

This means that the victim would seek $50,000 in general damages for pain and suffering. Remember, this amount is separate from any special damages sought for actual financial loss due to medical bills or lost wages. The Per Diem method offers a rational way to quantify non-tangible losses and argue for a fair compensation for the victim’s ordeal.

Criticisms of the Per Diem Method

Despite its widespread use, some common criticisms of the Per Diem Method are:

  • Oversimplification:  The Per Diem method, while straightforward, is often criticized for its over-simplification of the complex and multifaceted nature of pain and suffering. Assigning a flat rate to each day of suffering may not accurately reflect the varying intensity and impact of the victim’s experiences.
  • Subjectivity:  It is also viewed as subjective, as the calculation depends heavily on the perspectives of individual jurors. This can lead to significantly different compensation amounts based on the economic background and personal beliefs of the jury members.
  • Underemphasizes Long-Term Effects:  Critics argue that the Per Diem method does not consider the potential long-term effects of the injury that extend beyond the recovery period. For injuries that result in lifelong consequences, the method might undervalue the victim’s suffering.
  • Constant Rate Ignores Variability of Pain & Suffering:  The method relies on the assumption that the rate of suffering is constant, which often does not mirror the reality of personal injury cases. Pain and suffering can fluctuate drastically from day to day, making a flat daily rate potentially misleading.
  • Quantifies the Unquantifiable:  Lastly, the Per Diem method assumes that pain and suffering can be quantified monetarily, which some critics reject. They argue that no amount of money can truly compensate for the physical pain and emotional distress experienced by the victim.

Learn More About Quantifying Pain and Suffering from Our Attorneys

To learn more about quantifying pain and suffering in personal injury claims, we invite you to connect with our specialized attorneys. Our team is adept at navigating the complexities of Per Diem calculations, ensuring all factors are duly considered, and developing compelling arguments for fair compensations.

We believe in personalized legal guidance, and we are committed to helping each client understand their rights and legal options in the light of their unique situation. Feel free to contact us for a FREE CONSULTATION where we can provide a comprehensive view of the Per Diem method and how it can be tailored to your specific case. We are dedicated to ensuring you receive the justice and compensation you deserve, and have a long history of obtaining excellent results for our clients.
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