pain and suffering

How to Determine Pain and Suffering in a Personal Injury Case

When you’re injured as a result of someone else’s negligence, you may be able to seek financial compensation. In personal injury cases, this compensation covers the pain and suffering you encounter.

Sometimes determining that pain and suffering is easy, for example, when you have medical records that outline what happened in detail. However, at other times, this is not so straightforward.

The negative effects of pain and suffering are wide ranging. From lost working hours to a reduction in your quality of life, there’s a lot to consider. Some elements are easy to prove, while others require legal expertise if you are to get to the bottom of them. Using the skills of a personal injury lawyer, you can determine the true cost of your injury.

Establishing responsibility comes first

Before you can determine pain and suffering, you need to establish responsibility. In personal injury cases, this starts with identifying the defendant’s duty of care. Someone may have a duty of care to keep you safe when you’re on their property. Or, they may have a duty of care because you’re using their goods or services. When you’re a driver, you have a duty of care over passengers and other road users.

Upon establishing a duty of care, you need to prove that the duty has been breached. Using driving as an example, you breach your duty of care when you drive under the influence of alcohol. When someone is a drunk driver, they’re no longer driving their vehicle safely. They’re breaching their duty of care to the people in their vehicle and to others on the road.

Finally, you need to prove that a breach of someone’s duty of care has caused you pain and suffering. Any claims you make about pain and suffering must be reasonable and proportionate.

Your contribution to the incident

Someone who has caused you pain and suffering may argue that you contributed to the incident. Under California’s judicial system, a defendant can claim comparative negligence. Comparative negligence can be argued when the claimant contributed to the accident. For example, if a drunk driver causes an accident but you were driving over the speed limit, you may have contributed to any injuries you experience. Comparative negligence may not eliminate your claim altogether, but it could lower the amount of compensation you receive.

Understanding Pain and Suffering

As you’ve probably already guessed, there’s a point at which determining pain and suffering becomes challenging. Mental trauma is a great example of this. What some people may find anxiety-inducing, others aren’t worried by. It’s important to remember that pain and suffering are subjective, and that your experience may be entirely different to someone else’s.

You may find it useful to explore some examples of pain and suffering.

Pain and Suffering Varies Between People

As you already know, pain and suffering are subjective. Who you are as a person and what you enjoy has a big impact on the mental side effects. For example, if someone negligently leaves glass lying around their business and you injure your hand but you can still work, you may claim for the medical bills only. But if you experience the same injury, and you’re a surgeon who depends on a full range of motion in order to work, you could also claim for loss of earnings. Depending on the stage of your career, you could claim for projected future earnings too.

Mental anguish can also vary considerably. Some people are able to recover from a car crash within a matter of weeks. Others experience anxiety that’s so severe they can no longer spend time in a vehicle, and require counselling.

Mental Trauma

It isn’t unusual to suffer mental trauma as a result of an accident, and this is especially true when the accident was severe. Conditions such as Post Traumatic Stress Disorder (PTSD) can result in a significant decline in your quality of life. They also require ongoing care, which can become quite costly.

Mental trauma arises in different forms following an accident. Common examples include:

  • Fear of the accident happening again.
  • Feeling humiliated because of a reduction in physical wellbeing.
  • Survivor’s guilt if someone else died.
  • Anxieties surrounding circumstances similar to the accident.

Mental pain and suffering can reduce your quality of life as much as physical pain can. Conditions such as anxiety and depression can impose a lot of restrictions. Because of this, you should never disregard the consequences of mental trauma.

in pain from an accident

Special Damages Incurred Following an Accident

In addition to pain and suffering, many accident victims encounter certain financial losses. Such damages can include loss of earnings, medical bills, and other financial impacts. It isn’t unusual for those damages to make pain and suffering worse, especially if they induce further stress. Seeking financial compensation can help to undo some of those stresses.

Injuries

Almost all personal injury cases involve some form of physical injury. Your lawyer and the courts will look at the injuries that you experienced as a result of the incident. Additionally, they’ll look at how those injuries will affect you in the future.

In some cases, injuries result in long-term physical consequences. Damage to your spinal cord can result in life-long consequences and you may need support to manage with everyday life.

Injuries almost always result in a medical bill as well. As a part of your claim for pain and suffering, you may want to cover the cost of immediate medical bills and any future treatments.

Injuries Resulting in Time Off Work

If you’re involved in a car accident and you’re injured as a result, you may need to take time away from work. In the immediate recovery period, you’ll probably need to visit the emergency room and undergo some diagnostic tests. Afterward, you may need physical therapy to return to your normal physical state.

You should be able to claim the cost of your medical bills, the time you missed away from work, and the cost of ongoing therapies. You could also claim for other costs you incurred because of the injury.

Covering the Cost of Serious Injuries

Sometimes personal injury cases result in serious injuries. An unfortunate number of people experience spinal cord or brain damage. When this happens, the cost of pain and suffering can stretch over many years as opposed to weeks or months.

When you have a serious injury, your lawyer will need to demonstrate how it will affect you for the rest of your life. This could mean paying for ongoing care, a complete loss of earnings, and a significant reduction in your quality of life.

Establishing the Value of a Personal Injury Settlement

There’s no set formula for establishing the value of a personal injury settlement. Different insurance companies generally have different policies, but they will still have a lot of similarities. Ultimately, the value of a personal injury settlement depends on the following factors:

Economic Losses

Economic losses following an accident come in a number of forms. This usually includes medical bills and any time you need to spend away from work. If the accident involved your car, you may be able to cover the cost of repairing it.

Injury Severity

Typically, the more severe the injury, the higher the payment. This means a damaged spinal cord will result in a higher personal injury settlement than a broken wrist would.

Defendant Blame

How blameworthy was the defendant? Some defendants are more reckless than others. For example, a defendant who’s texting while driving may be considered more worthy of blame than someone who lost control of their car because they were tired.

Available Evidence

Never underestimate the impact that your evidence can have. Medical records, bills, and wage slips are all solid forms of evidence. You can claim for some forms of pain and suffering without clearcut proof. For example, you don’t need to see a counselor to claim mental anguish. But your evidence will be a lot stronger if a counselor can support your assertions.

Legal Expertise

Most personal injury cases take place with a lawyer assisting the claimant. Similarly, the defendant will have a lawyer too. Picking a legal professional with the right experience is essential. Additionally, you should look for someone who has access to experts who can help you establish proof.

Plaintiff Credibility

As a plaintiff, you need to be credible. Exaggerating your claims or failing to support them with evidence diminishes this credibility. Additionally, you’ll need to endear yourself to the jury. Consistent testimony and likeability can have a significant impact on the outcome of your case.

in pain from an accident

Providing Proof of Pain and Suffering

It’s difficult to make a claim for something you cannot prove. The amount of evidence you’ll need to provide will vary according to what you’re trying to prove. As an example, if you fractured a rib, expect to provide a chest x-ray. But if you’re claiming for ongoing anxiety, providing proof isn’t so straightforward.

X-Rays

X-rays and other forms of medical imaging are excellent sources of proof, but you’ll also need the doctors’ reports to go with them. Your doctor will need to state the type of injury that’s present and verify that it is there as a result of the accident.

Property Damage and Reports

Try to take as many photos as possible of property damage. Taking photos in a time-sensitive fashion is essential. After a car accident, try to take photos at the scene. In addition to photos of the damage, you may need an expert report to highlight the extent of the damage. Using cars as an example again, this would mean getting a report from a mechanic.

Medical Notes

Throughout the course of your treatment, your medical team will make notes and create treatment plans. Your legal team will need to access all the notes and any recommendations that come with them. Ensure they can access your list of medications too, as some can cause side effects that may be difficult to manage.

Evidence of Activity Decline

If your injuries have caused a reduction in activity levels, you’ll need to provide evidence of this. Videos are ideal, although not everyone has videos of their previous activity capabilities. You may need someone to testify on your behalf, such as a colleague or neighbor.

Testimony

Testimony from family, friends, and colleagues can prove useful in a lot of ways. For example, if you’ve experienced mental anguish following your accident, they can detail the effects of this. In the case of a severe brain injury, they may be required to testify to personality changes too.

Proving Loss of Earnings

How you go about proving your loss of earnings may vary according to your working situation. If you’re in a salaried role, you may need to provide evidence of your usual wages. However, if you earn a commission or you work for yourself, you’ll need to provide evidence of your average earnings.

Depending on the severity of your injury and your ability to return to work, you could also claim for future long-term losses.

Battling with Insurance Companies

Not all personal injury cases reach a courtroom. You may find that your battle is with the insurance company.

Making a claim on someone else’s insurance can feel frustrating. Insurance companies will make you prove everything you’re trying to claim, which can take a seriously long time when it comes to proving something like mental anguish. Additionally, they’ll do what they can to demonstrate your own level of fault in the incident.

If an insurance company can argue that you contributed to your own pain and suffering, you may see a reduction in your payout. For example, if you slip and fall while walking on a loose floorboard, your case is stronger if you weren’t wearing high heels at the time. Similarly, if you’re involved in a car crash and the mechanic finds that your tires were due for a replacement, an insurance company may argue that newer tires could have helped you slow down faster.

Finding the Right Support

Regardless of whether your claim takes you to a courtroom or not, you’ll still need to hire a lawyer. Personal injury law is incredibly complex. Trying to interpret it alone is likely to add to your stresses and it can weaken your case. With a personal injury lawyer, you can overcome some of the legal hurdles ahead.

At Batta Fulkerson, our lawyers can help you establish pain and suffering. We serve people throughout San Diego and we always fight tirelessly for our clients. If you’re facing a personal injury case, call 619 333 5555 to discuss it with us.