How Do You Show Pain and Suffering in a Personal Injury Case?
If you’ve been injured in a vehicle accident or slip and fall, you’ve felt physical pain and perhaps even suffered psychological harm as well. You may be entitled to compensation for the suffering you’ve endured due to the negligence of another party. In a lawsuit, the injured party (the plaintiff) has the burden of proving this harm has occurred. How do you prove something like pain and suffering?
Many physical injuries are easy to prove. There can be X-rays, CT and MRI scans to document the harm done. Tests can be performed to measure neurological and brain damage. The level of pain and suffering from a given injury, a concussion or a broken hip, can vary from person to person, depending on the nature of the injury, the victim’s age, the person’s overall physical and psychological health and how effective the medical treatment and pain management are.
What is considered pain and suffering in a personal injury case?
Pain and suffering is a key component of most personal injury cases. An attorney representing a plaintiff needs to know how to show the level of pain and suffering to the insurance company when negotiating a settlement and to a jury if the case goes to a trial. The issue generally boils down to . . .
- What’s the time frame for the pain and suffering? Is it over? Is it expected to last into the future? If so, for how long?
- How severe was the pain and suffering? How bad is it now and how bad is it expected to be in the future?
- How did the pain and suffering alter the victim's life in the past, and what will the future impact be?
There are two types of pain and suffering, physical and mental. Physical pain and suffering is the pain the plaintiff feels due to the physical injuries, their side effects, and medical treatment and its side effects.
- The injury can result in pain and suffering, and treatment often results in its own degree of pain and limitations.
- This covers the pain and suffering from the time of the injury up through the future if a full recovery isn’t expected.
- If the plaintiff was injured or disabled before the accident, the pain and suffering at issue would be the worsening of their condition in addition to any new injuries that were suffered.
Mental pain and suffering covers the negative emotions an accident victim suffers as a result of having to endure the physical pain and trauma of the accident, the injuries caused by it and their effect on the person’s life.
- Mental pain and suffering results from the physical injuries and their impact on the person’s life, relationships and abilities (such as being able to work and support a family, mobility or mental impairments due to traumatic brain injuries).
- They can result from visible scarring, burns and disfigurement.
- Mental pain and suffering covers mental anguish, emotional distress, loss of enjoyment of life, fear, anger, humiliation, anxiety and shock.
- It can include anger, depression, anxiety, loss of appetite, lack of energy, sexual dysfunction, mood swings, sleep, disturbances and post-traumatic stress disorder (PTSD).
- It includes what the plaintiff has endured since the injury and what he or she is expected to suffer in the future.
The types and degree of pain and suffering are unique in each case.
- In a more serious vehicle accident, there could be multiple broken bones, internal injuries, traumatic brain and spinal cord injuries.
- Physical injuries may be so severe that the victim’s ability to work and earn an income may end, permanently or temporarily; or his or her potential earnings may be cut due to limitations caused by the accident.
- A victim, along with feeling the physical pain due to the accident, could become depressed and angry to the point of being suicidal, having difficulty sleeping and experiencing significant loss of appetite.
- He or she not only needs physical injuries treated but may require treatment by a psychologist or therapist.
All of these problems are directly related to the accident, so the victim should obtain compensation for their mental pain and suffering.
How do insurance companies consider pain and suffering?
When it comes to insurance companies coming up with a settlement offer, they do what insurance companies do -- look at and calculate numbers.
- They often will look at the claimant’s total medical bills and lost wages and multiply them by a number (normally between 1.5 and 4) to come up with a figure to present to the plaintiff for settlement.
- If the injuries are especially severe, the number (known as a multiplier) normally goes up.
- This is a rough estimate that’s used for negotiating purposes.
This numerical approach has many limitations, especially for a plaintiff who may be suffering great pain due to something like soft tissue injuries, back injuries or complex regional pain syndrome that may not be reflected by large medical bills.
How do juries consider pain and suffering?
Nearly all personal injury cases are settled before they’re decided at a trial. If that’s not how your case is resolved, you and others will need to testify about your injuries and their impact on you physically and emotionally.
There are no hard and fast rules that judges give juries when they’re asked to calculate damages to compensate a plaintiff for pain and suffering. Judges often ask juries to use their common sense, background and experience to come up with a fair and reasonable figure to compensate the plaintiff for his or her pain and suffering.
Witnesses can include your treating physician, treating mental health professional, spouse or those with personal knowledge of how you acted or what you said about your physical and mental pain, and any medical experts testifying about your injuries.
Some of the “wild cards” that can impact a jury’s decision can include whether . . .
- The witness is likeable and credible
- The testimony of witnesses about pain and suffering is consistent
- The plaintiff or other witnesses appear to be exaggerating claims of pain and suffering
- The plaintiff’s physician, mental health professional and experts support the plaintiff’s claims of pain and suffering
- The diagnosis, injuries and claims of pain and suffering make sense to the jury.
Your attorney will prepare you and your witnesses to give you the best chance of success on the stand. Opposing counsel, through cross examination, will try to make you and your witnesses appear to be less credible or suggest that you’re exaggerating your claims. Your attorney will then have an opportunity to ask more questions and try to limit whatever harm may have been done to your case.
A plaintiff’s attorney in a personal injury case tells a story, whether that’s to an insurance company or a jury. An important part of that story is the plaintiff’s pain and suffering caused by the accident. How much there is to tell, how well it’s told and how receptive the audience is can mean the difference between success and failure in a personal injury case.