Pain and Suffering in New York Wrongful Death Lawsuits
A wrongful death lawsuit in New York is a civil action filed on behalf of a victim who was killed due to the negligence or intentional act of another person. The purpose of a wrongful death lawsuit is to compensate the survivors for their losses, including funeral expenses, lost wages, and pain and suffering. If you are considering filing a wrongful death lawsuit, it is important to speak with an experienced attorney who can help you prove your case and negotiate a fair settlement.
Need to Know:
- “Pain and suffering” is a legal term that describes one of the damages that a family may receive when they file a lawsuit after the wrongful death of a relative
- Pain and suffering is calculated in meticulous and complicated ways, and it is best to have an experienced attorney at your side
- In the state of New York, unlike some states, there is no cap on how much a family can be awarded for their deceased loved one’s pain and suffering
Although it is tough to think about, considering the extent of a victim’s pain and suffering prior to death is often necessary to ensure the family and loved ones of the decedent are getting the full amount of compensation they deserve.
In This Article:
- What is Pain and Suffering?
- Evidence of Pain and Suffering Before Death
- How is Pain and Suffering Calculated?
- Pain and Suffering Damages in New York
- Wrongful Death Lawyers Recovering Damages
The wrongful death lawyers at Block O’Toole & Murphy are here to help you through this difficult time. We can assist you in calculating the various damages you may be entitled to as a surviving family member in a wrongful death case in New York, including pain and suffering. Call us at 212-736-5300 to speak to an expert attorney today.
What is Pain and Suffering?
“Pain and suffering” refers to an area of damages the victim’s family may be entitled to receive when making a wrongful death claim. It is generally measured the same way as pain and suffering damages in personal injury cases. In both personal injury and wrongful death cases, damages are often split into economic and non-economic categories. Economic damages include things like the deceased’s medical bills, funeral expenses, and loss of income. These damages are typically easier to quantify.
In contrast, non-economic damages have less to do with the measurable logistics of a personal injury or wrongful death case, and more about how the injury or death affected the victim, as well as how the victim’s family will be affected long-term. Pain and suffering falls into this category of damages. Specifically, in a wrongful death case, it means that the surviving family members of the deceased can claim damages for the pain and suffering that their loved one endured before their time of death, whether that was almost immediately in a car accident, or after being treated in a hospital for weeks.
Unfortunately, these kinds of damages are not easy to calculate. It is incredibly difficult to place a monetary value on the pain and suffering someone has experienced in an accident, because it does not merely constitute physical damages. It can extend to a person’s mental and emotional health long after the physical injuries have healed.
For example, if a person gets into a car accident, they might sustain physical injuries such as broken bones or a concussion. Although painful, those injuries will heal over time. Consequentially, however, the accident victim might be unable to work for an extended period of time or take part in activities they enjoy. Their injuries could develop complications and lead to unforeseen issues that affect their daily life. These difficulties could lead to emotional issues as well, such as depression, anxiety, anger, and in extreme cases, post-traumatic stress disorder (PTSD).
Although these kinds of damages are more difficult to calculate, they are just as deserving of compensation as physical injuries, since they also deeply affect the victim’s life. This is still applicable in the case of wrongful death. Even though the victim did not survive the accident, the mental and physical pain and suffering that they experienced in the time before death can be calculated and claimed by the victim’s family. That could mean weeks spent in a hospital receiving treatment before passing, or the few minutes between when the accident occurred and time of death. Both constitute pain and suffering, and although unpleasant to think about, the surviving family members deserve compensation for it.
Evidence of Pain and Suffering Before Death
Pain and suffering can be difficult to prove in certain cases. One way to prove pre-death pain and suffering is through objective medical evidence. The ambulance call report, hospital records, autopsy reports and any other medical evidence can provide notations from first responders and medical providers as to the victim’s words and pain level. The Glasgow Coma Scale (GCS) was developed to help determine the amount of consciousness a person experienced after trauma. This scale scores qualifiers such as whether the victim could move, speak, or open their eyes after the injury occurred. A low GCS scale score usually means that the injured person does not have much, if any, level of consciousness. These low scores can make it difficult or impossible to prove any level of conscious pain and suffering.
Pre-impact terror can also be considered in a wrongful death case. Also known as fear of impending death, this factor is measured by the period immediately before the accident during which the victim may have been aware that the accident was about to occur, and the victim is aware that they are about to be very seriously injured or killed. This can and is usually proven through eyewitness testimony or video footage of the accident — if it exists.
Both conscious pain and suffering and pre-impact terror/fear of impending death are very difficult to think about and discuss with family members of the deceased as well as the jury members during trial. However, they are an integral part of damages in any wrongful death case.
How is Pain and Suffering Calculated?
There are two methods that are the most widely used to get an estimate for how much pain and suffering damages might be worth, although no amount that you produce yourself is guaranteed. To calculate the exact number, you would need to speak to an experienced wrongful death attorney to figure out the full amount you might be able to claim. The two methods are:
The Multiplier Method
When using this method, all of the economic damages (medical bills, funeral expenses, etc.) will be multiplied by a number that ranges from 1 to 5. The resulting figure is meant to represent the value of the victim’s pain and suffering. Typically, the more severe the injuries or the longer the victim suffered before their time of death, the higher the multiplier. Again, this figure is typically a rough estimate of what could be claimed, and in no way guarantees the actual amount of damages.
The Per Diem Method
Similar to the multiplier method, the per diem method also provides a rough estimate of the pain and suffering damages that could be owed. Using this method, a “daily rate” is selected and is multiplied by the number of days that the accident and resulting injuries impacted the victim’s life before they died.
You can also potentially seek compensation from the neglectful party’s insurance company (a third-party claim). Insurance companies do not necessarily use the methods above to calculate damages, even though it is a way for you to get a ballpark figure. Instead, many insurance companies use computer programs and consider things like the severity of the injury and the type of medical treatment the victim received. Treatment from a medical doctor would likely be taken more seriously by insurance companies than a chiropractor, for example.
Pain and Suffering Damages in New York
Most of the information above generally applies to most wrongful death or personal injury cases, but there are a couple caveats that apply only to New York.
Mental Pain and Suffering
In New York State, family members of the victim are unfortunately not entitled to compensation for their own mental pain and suffering (although they can recover some for the victim’s pain and suffering). For example, if a person died in a car accident in New York, the family could only claim damages for the emotional pain and suffering the victim would have been entitled to had they lived. Family members cannot claim damages for their own emotional trauma due to the loss of their loved one. At Block O’Toole & Murphy, we believe this state law is highly antiquated and out of date and other states have much better statutes regarding a family’s claim for pain and suffering following the death of a loved one; the loved ones of the victim should be able to receive compensation for the unnecessary emotional trauma they have been subjected to as a result of another party’s negligence.
No Caps for Pain and Suffering Damages
New York is one of the few states that does not set limits on the amount of damages that can be claimed in a wrongful death or personal injury case. This means that the jury can award any amount that they believe will provide full compensation for the victim, within reason. In many other states, there is a fear that juries will award much more than is economically deserved to a sympathetic plaintiff. In the hope of curbing the potential for this, there is a cap set on the amount of damages that can be awarded in personal injury or wrongful death cases. Luckily, New York does not set one of these limits, allowing all victims to have a chance at getting the full amount of compensation that they deserve.
Wrongful Death Lawyers Recovering Damages
Although we understand that money will never be able to replace the loved one you have lost, the wrongful death lawyers at Block O’Toole & Murphy are here to help make this difficult time easier for you.
We will bring your case all the way to trial if necessary, fighting to get the maximum amount of compensation you are entitled to, so that you are able to grieve the loss of your loved one without the added stress of financial worry.
- $7,525,000 settlement for a family who lost their wife and mother and 7-year-old son in a heartbreaking car accident
- $7,200,000 settlement for the family of a 25-year-old Brooklyn man who died after falling 50 feet to the bottom of an elevator shaft
- $5,000,000 settlement for the four children of a mother who was tragically killed when she was hit by a passing garbage truck while walking on the sidewalk
- $3,000,000 settlement for the wife and two adult children of a man who suffered severe injuries in a car accident, leading to his death
- $2,558,000 settlement for the wife and two children of a man who died nine months after he was in a car accident and suffered a traumatic brain injury
- $1,500,000 settlement for the parents of a man who died in a motor vehicle accident when his car slipped on black ice, caused by the state’s failure to install sufficient drainage on the roadway
If you lost a loved one in New York, you may be entitled to damages for pain and suffering. Although no amount of money can replace a loved one, filing a wrongful death lawsuit in New York can help you achieve peace of mind and provide you with financial support during this challenging time.
To speak to a wrongful death attorney at Block O’Toole & Murphy, simply call 212-736-5300 or complete the FREE case review form. Our firm serves the New York City, Long Island, and upstate New York.
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