What is Pain and Suffering In a Personal Injury Case?

Especially in cases involving serious injury, "pain and suffering" can represent a significant portion of a personal injury claimant's compensable losses.

In most personal injury cases, the claimant will be entitled to compensation for two kinds of losses (called "damages" in legalese): economic and non-economic. Economic damages include medical bills and lost income, while non-economic damages cover the less quantifiable and more personal effects of the claimant's accident and resulting injuries. The biggest component of non-economic damages usually involves compensation for the claimant's "pain and suffering."

Let's look at how pain and suffering is typically defined, and how to best establish these kinds of damages in a personal injury case.

What Constitutes "Pain and Suffering"?

There's no universal definition for "pain and suffering" in the realm of personal injury law, but the term typically refers to:

  • physical pain caused by the accident itself
  • physical discomfort resulting from necessary medical treatment, and
  • mental anguish, sleeplessness, anxiety, and other more psychological effects of the accident and resulting injuries.

The type of injury you suffered and the nature of your medical treatment are usually the two basic indicators (to an insurance company or a jury) of the degree of pain and suffering you have endured.

If you're in a car accident that results in $5,000 in vehicle damage and $15,000 in medical bills, your "pain and suffering" damages are going to be significant. But if that same accident results in only $500 in medical bills (for x-rays that came back negative), your "pain and suffering" damages won't be much more than nominal.

Using Medical Records and Expert Testimony to Show "Pain and Suffering"

In a personal injury case, your medical records tell the story of the nature and extent of your injuries, and in some lawsuits, your doctor or another medical expert might be called as a witness to explain the typical physical impact of your injuries from a pain, discomfort, and limitation of movement standpoint. If you've suffered significant psychological or emotional harm, a psychologist or therapist might play the same role in helping to establish the mental component of your "pain and suffering."

How Length of Recovery Affects Pain and Suffering

To most insurance companies and courts, the longer the recovery period the greater the claimant's pain and suffering. The most effective way to establish this key factor is to have it indicated in your medical records. Sometimes your doctor will note in your medical chart that recovery is expected to take a certain number of weeks or months, and/or that you should not engage in certain activities for a certain amount of time.

In some cases, the only way your recovery time will make it into your medical records is if you report your progress (or lack of it) to the doctor. Going to your doctor to report on your recovery can be very important to your personal injury case for two reasons:

  • the mere fact that your records show a doctor visit four, six, or 12 weeks after an accident indicates that your injury required ongoing attention, and
  • when you visit your doctor and report continuing pain, discomfort, stiffness, or immobility, those kinds of ongoing issues will play a crucial role in the value of your pain and suffering damages.

Sometimes complete "recovery" from your injuries isn't possible from a medical standpoint. Learn how long-term injuries affect the value of your claim.

The Proof Is (Largely) Up to You

The type and intensity of your specific pain and suffering can best be shown if you take charge of documenting/reporting your post-accident experience.That means:

  • If you have pain or discomfort and are being treated by a physician, make sure you convey all the details so that they'll be noted in your medical records.
  • If you believe you need medication to control your pain or discomfort, don’t be too brave, too shy, or too stubborn to ask for it.
  • If you are suffering continued pain or discomfort but do not have any further medical appointments scheduled, consider scheduling one. It makes good medical sense and will document your ongoing problems.
  • If your pain or discomfort is interfering with your ability to lead your normal life, write down any daily activities you are unable to do or that you are having difficulty doing because of your injuries.
  • If your injuries can be seen—wounds, swelling, discoloration—photograph them regularly and enable the "date stamp" function on your phone/camera.

In addition, keeping a contemporaneous log or diary of everything you experience as a result of the accident—missed work, headaches, bouts of anxiety, sleepless nights—can be extremely helpful to your case. At the time of the accident, you may feel that you could not possibly forget the details of your injuries and their effects on you. However, many people find that their memories fade quite rapidly. A diary or journal can help combat this problem.

For information that's tailored to your particular situation, it might make sense to talk to a personal injury lawyer about your case.

(Some material excerpted from How to Win Your Personal Injury Claim by Attorney Joseph Matthews (Nolo).)

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