Pain and suffering is a common term you hear often when discussing car, pedestrian, and motorcycle accidents. It is a subjective way of measuring harm to your life.
After your medical bills and records have been evaluated and your paychecks reviewed, it is time to claim pain and suffering. But how do you objectively measure pain and suffering?
Pain and Suffering As a Measure of Damages
In Arizona law, to claim damages, you must have suffered actual harm or injury and show proof of it in court.
When it comes to personal injury and car accident cases, you are entitled to compensation for all of your injuries—past, present and future. These include medical expenses, lost earnings, missed school, and non-economic damages, specifically pain and suffering.
Here are some common questions when considering filing for damages caused by pain and suffering:
- What constitutes compensable pain and suffering?
- How do you document your pain and suffering?
- What can you expect during trial?
Pain and Suffering Defined
Basically, pain and suffering is a legal term that describes the physical and mental stress as a result of an injury. In legalese, it is an element of general, compensatory, and non-economic damages. It entitles the plaintiff to recover monetary compensation for enduring mental anguish and physical pain.
Unfortunately, non-economic compensatory damages are not as easy to quantify as economic damages. Emergency room bills and lost wages from time missed at work are examples of economic damages.
What exactly constitutes pain and suffering varies from case to case, but it often includes:
- Aches and pains
- Soreness and/or stiffness
- Chronic pain or discomfort
- Worsened pre-existing injury
- Loss of enjoyment of life
- Inability to participate in activities, whether temporarily or permanently
- Limitations on interacting with loved ones
- Mental disorders
- Memory loss
- Physical disfigurement
- Shortening of life
Additionally, pain and suffering can and does occur as a result of treatment for the injuries you’ve sustained. Surgery, physical therapy, long hospital stays, confinement to bed rest, side effects of medication, and stressful psychological visits can all create and contribute to your pain and suffering.
Proving Your Pain and Suffering in Court
The laws of Arizona seek to restore you, as closely as possible, to your original state had the accident never occurred. This is known as making you “whole.” This requires an accounting of what injuries and costs you suffered so the fact finding jury can make a determination.
The jury’s role is to weigh the facts and decide what dollar amount, if any, will make you whole. You and your attorney must show all the damages so the jury can fulfill their assigned role.
Proving Your Pain and Suffering As Damages You Suffered
Because of the personal nature of pain and suffering, it differs from so-called specific damages like medical bills and lost wages. There is no easily determined method of quantifying pain and suffering. Fortunately, courts do not demand a precise accounting of pain and suffering damages.The damages do not need to be shown with mathematical certainty, but they do need to be backed up with substantial evidence.
Lay witnesses are witnesses who are not testifying as experts and are subject to lesser standards. These are often coworkers, friends, family, and members of your community. They are allowed to testify their observations of the victim’s physical and mental conditions. More importantly, lay witnesses are permitted a certain leeway in testifying to facts that require a small element of inference. For example, a lay witness may testify regarding your pain and suffering without any special training in a medical field. These lay witnesses could be considered experts on you because they know you better than anyone else.
Expert witnesses will also be critical in conveying pain and suffering damages. They are able to leverage knowledge and experience to explain the nature and extent of injuries to the jury.
Here are a couple of examples:
- Biokineticists will show the forces applied to the body during the accident.
- Healthcare professionals can testify to their experiences with prior patients with similar experiences.
Measuring Pain and Suffering As Damages
Because the standard for damages is to restore you to the state you would have been in without the defendant’s conduct, there is no hard-and-fast standard for determining pain and suffering awards. The defendant must accept the risk of uncertainty for his or her conduct.
The jury’s job is to evaluate the circumstances of the injuries as well as the credibility of all involved, including witnesses. The courts will only interfere when an award either shocks the conscious or the jury’s findings were obviously based on prejudice or passion. If that happens, the judge or appellate court may either reduce the award or order a new trial. Therefore, the most important aspect of pain and suffering damages is your own sincerity and that of the witnesses.
A number of damages to be awarded need only be supported by a reasonable basis, which is a lesser standard than needed when proving damages. Once damages are proven, attorneys and insurance adjusters have several methods of obtaining a rough calculation of the damage amount they will request from the jury. Two of these are the 1) multiple method and the 2) per diem method.
Using this calculation, your lawyer will multiply your specific damages (medical costs, etc) by a number between 1 and 5, based on the severity of your injuries. This multiplier will also vary depending on the type of pain and suffering, its duration and available evidence for the jury.
Per Diem Method
The per diem—or per day—approach assigns a certain amount to each day from the day of the injury up to when the plaintiff is fully recovered. You and your attorney will choose the amount based on values assigned to activities you missed out on due to your suffering.
After researching previous jury verdicts for similar cases, your attorney will make your case using one method or the other before the jury to award you the requested amount.
Documentation of Pain and Suffering
You want to make it as simple as possible for the jury to link the accident to your injuries and the subsequent pain and suffering. Documenting both your physical and mental anguish is vital in making you whole. Such documentation may include:
- Medical reports, receipts for prescription, over-the-counter medicines, and medical bills.
- A log of all medical treatment, pain, and missed activities stemming from the accident.
- Photos of your physical injuries as visual descriptions of the accident and your anguish.
Emotional distress is often harder to prove but can be described in similar ways. Bills and medical logs from psychologists and psychiatrists can serve to frame your mental suffering. Your healthcare professionals can offer a narrative of the emotional pain you went through and continue to experience post-accident. Letters or notes from loved ones, community leaders, and employers commenting on your mental state may be useful.
It may also be wise to keep a journal documenting your day-to-day emotional health. A diary can be used as evidence of emotional turmoil at the trial. Drug prescriptions for psychological issues are also extremely important in showing emotional injury.
Again, the most important factor in recovering for pain and suffering is you. Carefully documenting your emotional state and expressing it before a panel of strangers is understandably daunting. But in court, it is vital that you are sincere in your request for relief from your life-altering accident. It is as equally necessary for the jury to understand the facts around your case as it is to understand how it affected your present and future.