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Pain and suffering is a noneconomic (or general) compensatory damage that is derivative of a physical injury.  

 

Meaning, you cannot claim damages for pain and suffering without first experiencing a physical injury.

It’s an umbrella phrase used to describe several different components of injury that cannot be easily quantified or measured.
 

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1)  What is pain and suffering?

 

Pain is sensory and more clinical. 

 

Pain describes the actual sensations and discomfort directly corresponding with an injury.

Meanwhile, suffering describes the process we undergo to cope with the pain and its impact on our lives.  It is more mental and emotional.  Suffering captures the stress and distress a physical injury can cause.

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2)  How is “pain” different from “suffering”?

 

Examples of pain do not start and end with the physical injury itself. 

 

Pain is experienced at various stages.  Some examples include:

  • The pain experienced from the actual process of being injured (i.e. third degree burn);

  • The residual, stationary pain and discomfort that exists after the injury-causing event (i.e. bulging discs in spine causing chronic back pain);

  • The pain from surgeries and other procedures to treat the underlying injury;

  • The pain and discomfort experienced during rehabilitation, physical therapy, and/or recovery;

  • The pain experienced from taking various medications and their side effects; or

  • The phantom limb pain experienced by amputees.

In some cases involving wrongful death, pain and suffering can be recovered if it can be proven the decedent actually anticipated their death in the moments before it occurred.

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3)  What are examples of physical pain?

 

Like pain, suffering is experienced is not isolated, but changes depending on the physical injury, associated pain, and the treatments available. 

 

Some examples of suffering include:

  • Disability or impairment;

  • Loss of enjoyment of life;

  • Disfigurement; or

  • Emotional distress.

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4)  What are examples of suffering?

 

Disability or impairment acknowledges that a physical injury impacts – or impairs – normal daily activities.  

For instance, a strained back can be a temporary injury that may only last a few weeks.  But, during those few weeks, you may be unable to do certain things without a degree of disability or impairment, such as putting on shoes, loading a dishwasher, picking up a small child, or getting a full night’s sleep.

Disability or impairment recognizes that even a temporary injury can impact your life.

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5)  What is disability or impairment?

 

In the legal context, loss of enjoyment of life recognizes when an injury prevents a person from engaging in activities in the same way or manner that previously brought them enjoyment. 

 

It is usually more specific than disability or impairment.

 

It is a way of dignifying that a person’s injury can impact their life in one of two ways:  it can impact the way a person participates in (and derives pleasure from) the normal activities of daily life; and it can impact the individual’s ability (or inability) to pursue their talents, recreational interests, hobbies, or professions.

 

As an extreme example, an avid daily runner who loses their leg in a car accident not only lost a leg and their ability to walk – they lost a significant daily hobby and outlet.  Incidentally, they also cannot participate in normal daily activities we routinely take for granted, and the amputation likely impacted their vocation, or job, in some way. 

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6)  What is loss of enjoyment of life?

 

Disfigurement can occur any time one’s body is permanently altered, such as due to a scar, burn, amputation, or other altered body part or condition that deviates from it’s normal and natural condition. 

 

As an item of damages, the value of disfigurement largely depends on the type of disfigurement, location on the body, severity of the disfigurement (small scar on knee v. face), age, gender, impact on your profession, and whether it can be treated or mitigated, medically. 

 

Mental and emotional damages are implied in any disfiguring injuries.

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7)  What is disfigurement?

 

Emotional distress is the term assigned to the mental harm and anguish that you may be experiencing because of your personal injury.  

 

Generally, emotional distress is more than temporary inconvenience.  

 

It is characterized by a more continuing experience, such that it is causing a significant disruption in your life.  Examples of emotional distress can include:

 

  • Grief (usually the unimaginable grief of losing a loved one)

  • Depression

  • Chronic anger such as from PTSD or a traumatic brain injury

  • Anxiety (i.e. fear of driving, nightmares, insomnia, etc.)

  • Inconvenience (interruption to life)

  • Embarrassment, humiliation, or indignity

  • Sexual Dysfunction

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8)  What is emotional distress?

Pain and suffering is often proven by using circumstantial evidence of how the your injuries have affected you.  

 

That’s because it’s impossible to crawl inside someone’s head and to know what they are feeling and experiencing.  Common factors that influence the value of your pain and suffering to a jury include:

  • The type of injury;

  • Your medical records;

  • Mental health records, if appropriate;

  • Your credibility (juries can sense when someone is stretching the truth or embellishing);

  • Before and after witnesses.

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9)  How do I prove pain and suffering?

 

There is no formula for calculating pain and suffering and all that it entails.  And, it’s value is left to the enlightened conscious of the jury.  

Pain and suffering is often translated in a way easy for a jury to understand and apply, depending on the underlying injury and circumstances.  

For instance, let's say a person suffered a temporary muscle strain from a minor motor vehicle collision.  The muscle strain resolved after two weeks of rest and taking muscle relaxing medications.  A plaintiff's attorney will likely try argue that the the pain and suffering should be calculated at an amount per day - such as $100 a day.

However, let's say the injury is more traumatic and that a person suffered an amputated leg after a motor vehicle collision.  A plaintiff's attorney will likely argue that the pain and suffering should be calculated at an amount per year, for the life expectancy of the individual.  If the injured person is 50 years old and is projected to have 24 more years to live, pain and suffering could be argued to be worth $200,000 per year for 24 years.

Defense attorneys and adjusters will also try to minimize pain and suffering and have their own, conservative ways of calculating it.

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10)  How is pain and suffering calculated?

 
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