December 6, 2016
What exactly is “pain and suffering” in a personal injury claim?
When someone is injured in a car accident, a fall at a store or due to someone else’s carelessness, they make a claim for damages in his personal injury claim or lawsuit. The two most common and significant claims for damages are medical expenses and pain and suffering. This is not to say that there are not other claims to be made. Quite the contrary. Claims may be made for any number of things like property damages, lost wages, loss of earning capacity, punitive damages and sometimes costs of bringing the case to trial.
“Pain and Suffering” is the term of art that has come to be used to refer to the personal distress caused by the physical or psychological injury due to the negligence of another. It is almost always a key element in determining the damages sustained by an accident victim. It is usually represented as an amount of money that is awarded to an accident victim to compensate that individual for the personal difficulties associated with an injury.
Pain and suffering has two key elements. There is a physical component and a mental component. Both are important to a claim for damages but juries are far more sympathetic to physical suffering than mental suffering under most circumstances.
The physical component is the type of damage for which it is easiest to obtain compensation. When it is clear that an individual suffered physically, the jury is more likely to award damages for this aspect of damages. This claim for damages will encompass physical discomfort, physical changes in lifestyle and the detrimental effects that a victim is likely to suffer in the future due to the injuries.
Mental pain and suffering is no less real but often looked at more skeptically in personal injury cases. It is sometimes called emotional distress or mental anguish. It may be characterized as anxiety, depression, grief, insomnia, loss of enjoyment of life, irritability PTSD, or even loss of consortium. Except for loss of consortium, the claim for mental pain and suffering, usually derives from the physical injuries themselves.
Claims for pain and suffering are categorized as general damages. They are not limited to claims for past damages but often include claims for future pain and suffering. The severity of claims for pain and suffering vary widely. They may be very small in nature and based on the evidence only merit a modest award of damages for pain and suffering. However, they are sometimes so catastrophic as to merit huge verdicts.
It is not unusual for the insurance companies and insurance defense lawyers to fight about the amount of damages warranted by a claim for pain and suffering. They often find it difficult to meaningfully challenge the claim for medical expenses (even though they try).
It is difficult to know how much a jury will award for pain and suffering and, therefore, calculating pain and suffering is a difficult and often complex process. There are no true guidelines to determine the value of damages for pain and suffering. The factors that a personal injury lawyer will look at are varied but will often include the following:
Consistency – Has the injury victim been consistent and realistic in describing his pain and suffering?
Credibility – Is the injury victim a credible witness?
Likeability – Is the injury victim a likable person? While this should not matter, the reality is that it does and we all know it is easier for a jury to award money to someone they like than someone they hate.
Medical Support – Does the injury victim have medical support for his claim and do the healthcare providers support his claim for damages?
Making actual calculations in a claim for pain and suffering in a personal injury case is challenging and complex. It is more of an art than a science. An experienced personal injury attorney will require detailed information about the claim and client to make a determination and advise a client. The attorney will require a close examination of the facts of each individual case and claim.
If you were injured due to the negligence of someone else and believe you have a claim for pain and suffering, contact Whitener Law Firm right away. You need to consult with a personal injury attorney to protect your rights.
Contact Whitener Law Firm ONLINE or at (505) 883-RUSS for a FREE CONSULTATION. Remember there is NO ATTORNEY FEE unless you settle or win your case.
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