A lot of my personal injury clients ask me for the 411 on pain and suffering. What is it? What does pain and suffering mean? And can they include it in their claim?
I’m a former emergency room nurse as well as a personal injury attorney with almost 30 years of experience, so I have a special relationship with pain and suffering. As a nurse, I’ve treated patients dealing with intense pain and read thousands of pages of medical records. As a lawyer, I’ve witnessed pain become chronic and successfully fought for my clients to be compensated for their pain and suffering in court.
What is Pain and Suffering?
The legal definition of pain and suffering is “the physical and mental distress suffered from an injury… which are part of the ‘general damages’ recoverable by someone injured by another’s negligence or intentional attack” (Legal Dictionary). Pain and suffering means the emotional and physical discomfort a person endured because of someone else’s actions or neglect. Cornell Law Schooldefines pain and suffering as including pain, discomfort, anguish, inconvenience, and emotional trauma. It is one of the noneconomic damagesa person can be compensated for during a personal injury lawsuit.
mental anguish, past and future, if it limits a person’s activities
To give you some examples, if you aren’t able to earn money or as much money as you did before your injury, this is incredibly stressful and can cause mental anguish. Depression, PTSD, and clinical anxiety are also considered mental anguish. If your injury may recur or grow more severe over time, the resulting fear of the extent of your injury qualifies as pain and suffering. If you are no longer able to knit, play LEGO with your grandchildren, or go fishing, your injury interferes with your enjoyment of life. Nerve damage that prevents you from brushing your teeth or preparing your meals on your own interferes with your daily life. If you can no longer drive because of eyesight problems, this interferes in your daily life, interferes with your enjoyment of life, and is a source of mental anguish.
How Do You Prove Pain and Suffering?
Proving pain and suffering can be tricky. As with all matters of law, you need evidence. To get a fair settlement, you can’t depend on the jury or judge’s empathy and compassion alone. Instead, Iseek to prove not only that you have pain and suffering, but that it is significant enough to warrant the amount of compensation we’re suing for.
Below are types of documentation I commonly use as evidence of my client’s pain and suffering:
Medical records naming the person’s symptoms and complaints of pain
Receipts for prescription and over-the-counter pain medications
Medical imaging such as CT scans and X-rays that document the person’s injuries and show pain would be likely because of that type of injury
Testimony from medical, vocational, and economic experts about the effects of the person’s injuries on their life and work
Testimony from family members, friends, coworkers, and neighbors about how the injuries have affected the person’s life and overall wellbeing
Entries from the person’s pain journal about the frequency and severity of their pain
The more evidence you can provide, the easier it is to prove pain and suffering. One piece of evidence, which as a pain journal, can be argued against more easily than a pain journal, X-rays, testimony from your doctor and spouse, and receipts for pain meds.
If you experienced a personal injurybecause of someone’s negligence, I highly recommend carefully documenting your experience, pain, and other damages as thoroughly as possible. And if the injury occurred within the last 2 years, call my office to set up a free consultation to talk with me about your specific situation.