How Can I Prove My Pain and Suffering?Personal Injuries
If someone else’s negligence caused your injuries, you might be entitled to compensation. The at-fault party can reimburse you for pain and suffering beyond your medical bills and surgery costs.
Pain and suffering are intangible damages that reduce your quality of life. In many cases, they are higher than economic damages. However, proving them is challenging. That’s why many people choose to work with a personal injury attorney.
Let’s look at what pain and suffering means and how to prove it in a personal injury case.
Loss of Enjoyment of Life
Loss of enjoyment of life refers to a person’s inability to participate in the same activities they did before an accident. For example, chronic back pain could prevent you from playing sports. A permanent disability could keep you from hobbies like running or gardening.
The money you receive in a personal injury lawsuit should compensate you for the frustration, pain, and anguish you feel due to the inability to lead the same life you did before the injuries.
According to studies, more than 20 percent of individuals who sustain injuries in a motor vehicle accident suffer from chronic, widespread pain years after the collision. This pain reduces your quality of life tremendously.
The common types of injuries that lead to physical pain and warrant compensation include:
- TBI (Traumatic Brain Injury)
- Back and neck injuries (whiplash)
- Broken bones
- Internal organ damage
- Strained or sprained muscles
- Nerve damage
The most common treatments for chronic pain are physical therapy and massage. Some people may need this physical therapy for years.
Chronic emotional distress and mental anguish could lead to severe suffering and physical pain.
For example, people injured in a serious car accident are at a high risk of developing mental health problems that require long-term treatment. Almost 40 percent of car crash survivors suffer from PTSD (Post-Traumatic Stress Syndrome).
Common types of emotional anguish associated with personal injury incidents include:
Depending on how severe the injury is, it could take years for a victim to recover. While monetary compensation can’t ameliorate mental anguish directly, it can help a person cope.
Loss of Consortium
Certain injuries could prevent a person from maintaining the same relationship with a loved one as they did before.
- Sexual relations – a disability could prevent the person from having the same sex life as before the accident.
- Services – injuries could keep the person from helping the spouse. For example, a disability may mean that a person can no longer help around the house or take care of children.
- Support – injuries may prevent a person from offering support whenever it is needed, making the life of their loved one harder.
You can receive compensation for the loss of consortium if you prove that injuries adversely affect the quality of your relationship. You may also be entitled to this type of compensation in a wrongful death claim.
Proving the loss of consortium can be complicated because these feelings are subjective. Meanwhile, it requires revealing the details of intimate relations with your spouse, which could be uncomfortable.
The goal of compensation for pain and suffering is to help a person get their life as close to normal as possible. For example, the money could allow the victim to get necessary physical and psychological therapy.
How much can I get for pain and suffering?
Compensation depends on many factors, including the type of evidence you present and the quality of the expert witness’ testimony.
Another important factor is your attorney’s experience. With top-notch legal representation, you can be sure that you won’t:
- Miss important evidence
- Choose an unqualified witness
- Inadequately approach the judge or jury
Non-tangible damages are highly subjective, as is the decision to pay them. That’s why you need a personal injury lawyer who can draft your legal arguments skillfully.
Limits on compensation for pain and suffering
Physical and emotional anguish is difficult to quantify and limit; therefore, payouts for pain and suffering in personal injury cases can be sizable. Some states limit compensation for this type of damage.
These states include:
The cap varies from state to state. It can be as low as $200,000 and as high as $1 million. California doesn’t cap for general pain and suffering payouts. However, it caps this compensation for medical malpractice lawsuits at $250,000.
How is pain and suffering calculated?
How does the judge know how much to award for pain and suffering? Besides a subjective evaluation of the case, courts and insurance companies usually use one of two calculation methods:
The insurance company (or the judge) adds up all economic damages. Then they multiply this amount by a number, usually between 1.5 and 5, to quantify pain and suffering.
For example, if your economic damages (medical bills, loss of wages) add up to $10,000, and the multiplier is two, you receive $20,000 for pain and suffering.
The size of the multiplier usually depends on the extent of your injuries and the predicted length of recovery. Serious injuries warrant a higher multiplier.
Daily Rate (Per Diem)
The insurance company may decide to set a certain amount for each day you experience pain and suffering due to your injuries.
This method is somewhat complex since it can be hard to determine the exact time to calculate. It works best for short-term injuries.
The per diem method isn’t popular for long-term pain and suffering since it’s much harder to calculate the daily rate.
What evidence can prove pain and suffering?
To prove pain and suffering to the insurance company or the court, you should collect as much evidence as possible.
This evidence may include:
- Medical records – information about your condition after the accident can help the insurance company determine the extent of your pain and suffering. For example, severe injuries and permanent disabilities result in a higher payout.
- Medical bills – all bills related to your treatment are essential for calculating damages. You should also keep track of prescriptions for injury-related medications.
- Documents – hold on to all documents related to the incident, from police reports to pay stubs showing a salary decrease. Even seemingly irrelevant paperwork could turn into crucial proof.
- Expert testimony – you may need to hire experts (usually medical professionals) to testify about the extent of your physical and mental anguish. They can also make a prognosis about projected recovery time.
- Photos – you can present photos or videos of the injuries from the day of the incident and document how they change over time.
- Journals – if the pain and suffering interfere with your normal activities, you can keep a journal of how it affects your daily life. These journals make it easier for the judge or insurance company to decide the extent of your pain and suffering. Since memories of pain and suffering tend to fade, a diary keeps them fresh for proving your case.
If you have to prove loss of consortium, be ready to provide additional evidence:
- Proof that your marriage was stable (photos, payments for joint travels).
- Medical documents that demonstrate life expectancy for both spouses.
- Evidence of household services performed by the spouse.
- Evidence of activities the two of you participated in together.
If you work with a personal injury attorney, they can explain what evidence you need to maximize your potential pain and suffering payout. A legal representative can also help gather evidence, especially if your injuries don’t leave you sufficient time to deal with the lawsuit.
Do I need to prove negligence to recover compensation for pain and suffering?
Proving negligence is essential to receiving compensation in a personal injury case.
To start fighting for a fair amount, you would need to prove:
- The defendant had a legal duty of care to you. For example, a driver has a legal duty of care to follow traffic laws behind the wheel.
- The defendant breached the legal duty of care to you. For example, a person drove drunk, ran a red light, and crashed into your vehicle.
- The incident led to injuries. For example, you broke your leg in a motor vehicle collision.
- The injuries led to pain and suffering. For example, the disabling injury kept you from going back to work or participating in activities with your kids, thus decreasing your quality of life.
In some situations, negligence is difficult to prove. Even a straightforward rear-end car crash could turn into a complex case. That’s why you need a personal injury attorney. A skilled lawyer can provide valuable advice and prevent you from making unfortunate mistakes.
What if the insurance company refuses to pay for pain and suffering?
If you qualify for pain and suffering payouts, it doesn’t mean that the insurance will make them automatically. You still have to prove negligence, present evidence, and negotiate the amount.
When the insurance company refuses to pay for pain and suffering, or if the insurance company offers an unfair settlement amount, you can file a personal injury lawsuit.
In both cases, you should consider hiring a personal injury lawyer. Presenting your case to the judge or jury can be complicated. Meanwhile, the amount of paperwork associated with these cases is substantial. Without legal representation, you could make a simple mistake and hurt your chances of getting reasonable compensation.
When will I get paid?
If you present sufficient evidence and negotiate a settlement with an insurance company, you should get your money within a month. If you win the case in court, the judge sets a deadline by which the at-fault party should make a payment.
Keep in mind that if you are suing the at-fault party personally (e.g. a driver without insurance), you may not always get all of your money quickly. If the defendant doesn’t have the funds to make a lump sum payment, the judge may allow them to pay in increments.
Can I prove pain and suffering without legal assistance?
The law doesn’t stop victims from representing themselves when filing a personal injury claim.
If you decide to do this, you are fully responsible for:
- Collecting evidence
- Finding expert witnesses
- Taking depositions
- Filing documents on time
- Handling negotiations
- Presenting your case
You are also likely to face the defendant’s lawyers in court. Without legal experience, it is tough to prove your case. Self-representation is even more challenging if you are still recovering from your injuries.
If you try to represent yourself in a personal injury case and feel like you are failing, contact an attorney. The earlier you hand the case over to professional lawyers, the more likely you obtain fair compensation.
Nathan Hughey, an attorney and fourth-generation South Carolinian, founded Hughey Law Firm in 2007. Before that, he spent five years defending nursing homes and insurance companies. Leveraging his experience, he now advocates for those injured or wronged by such entities, securing over $220 million in verdicts and settlements.