Personal injury attorneys often advertise that they will “get you paid” for your pain and suffering. But what exactly does “pain and suffering” mean in a legal sense, and how do you prove or demonstrate pain and suffering?
Most automobile accidents result in injuries, even if they do not result in life-threatening or life-altering injuries. Even if your injuries are relatively minor, the mere fact that you have been subjected to an injury by an at-fault driver may entitle you to compensation. When a person causes an accident through negligence, that person is responsible for “making whole” all damaged parties. Physical injuries are damages that need to be “made whole”, but what rises to the level of damages in the State of Maryland and how do you quantify them in dollars and cents?
WHAT IS PAIN AND SUFFERING?
The phrase “pain and suffering” refers to a legal term that describes both the physical and emotional injuries suffered by a victim following an accident. Any physical pain or mental anguish you suffer following an accident may qualify as pain and suffering for settlement purposes. These damages will certainly include actual medical expenses paid for things like doctor visits, emergency room/hospital expenses, and physical therapy costs. These costs primarily relate to physical injuries. However, the responsible party can also be required to compensate you for any mental pain and suffering you experienced as a result of the accident, including any fright, nervousness, indignity, humiliation, embarrassment, and insult that were the direct result of the other party’s negligent behavior.
HOW DO I PROVE PAIN AND SUFFERING?
If you are injured in a car accident, it is important to document all injuries sustained from the moment of impact. Some people do not feel the effects of an accident until hours later, as symptoms sometimes do not manifest until even hours after the collision. There are instances where the vehicle isn’t even terribly damaged, but the occupants may still be hurt from the jostling caused by their vehicle coming into contact with another car. People who experience relatively minor injuries will often see their primary care physician or be seen at an urgent care clinic within a day or so of the incident. In other cases, accident victims are taken immediately to a hospital emergency room via ambulance or private vehicle.
Any visit to a medical provider will result in both medical records and bills being generated for the visit. While you do not need to memorize every interaction with medical providers or take copious notes during your visits, it is important to keep track of where you were seen and when. Under a Federal Law called the Health Insurance Portability and Accountability Act of 1996, or HIPAA, medical providers are required to keep records of all medical encounters, provide you with copies of those records upon request, and keep those records confidential. Medical records are vital to any claim of injury that results in pain and suffering because they provide direct evidence from medical professionals that you experienced trauma from the accident, the extent of the trauma, and how it was treated medically. These records and the associated bills are very important to any personal injury claim because they help identify the specific harms done and the actual costs of medical treatment for those injuries.
Your medical records provide clear and understandable descriptions of the seriousness of any physical injuries and can also help describe levels of pain associated with your injuries. These records describe the extent and duration of injuries, the amount of time needed to heal, all procedures, prescriptions, and physical therapies required to achieve that healing, any permanence of injury in terms of causing a permanent disability or disfigurement, and even any potential future expenses related to the injury.
WHAT IS EMOTIONAL DISTRESS?
While things like the specific physical injuries you suffer, the extent and duration of those injuries and the treatment and cost to heal them can illustrate pain and suffering, that is only part of the picture. In addition to the physical pain, there is often emotional distress associated with the injuries as well. Emotional distress can be best described as what you suffer emotionally when a personal injury accident occurs. It is a category of injuries that you may include in your claim for compensation in a personal injury claim. Some examples of emotional distress could include worrying, loss of concentration, stress, replaying the events, crying, insomnia, or even weight loss.
However, proving emotional distress can sometimes be more challenging than proving physical injuries. While there are usually medical records to detail physical injuries, these records rarely detail emotional distress. So how can you document or provide evidence that can prove that you have suffered emotional distress?
PROVING EMOTIONAL DISTRESS
In many ways, you are your best witness to emotional distress. It is important to reflect on what your daily life was like prior to the accident and what is going on emotionally as a result of the accident. For example, are you having flashbacks of the accident that are causing you distress? Do you feel more anxious about life in general and, particularly, about driving or riding in a vehicle? Are you having trouble sleeping or do you have nightmares of the incident that disturb your sleep? Are you experiencing the stress or anxiety that you have associated with the accident? You may provide your own testimony of the specific emotional injuries you have suffered or are currently suffering due to an accident. It is important to be as factual as possible and to explain how your emotional distress affects your ability to get through your day without exaggerating.
Evidence to prove emotional distress can also include witness testimony, documentation and other evidence related to the accident. Your friends and family may have observed that you seem different since the accident. They may have observed your inability to sleep or your apprehension about doing things that used to be routine, but which now seem to cause anxiety on your part. These people can testify to the emotional impact of the accident. You can also keep a journal of your emotional distress. During your convalescence and beyond you can write daily entries on how the accident and your injuries are affecting you that day. You can explain any physical limitations and how they are affecting you psychologically and emotionally. You can explain your frustration in your inability to do things you used to enjoy but which you can no longer do because of your injuries. The more specific you are regarding the impact of the accident on your daily life and its effect on your ability to enjoy recreational activities, the more helpful this information can be in documenting emotional distress.
PROVING LOST WAGES
Injuries from an accident can also have an impact on your employment. Most accidents that result in injuries also result in lost wages. If your injuries result in you missing work because you are hospitalized, or recovering at home, or undergoing physical therapy or other medical treatments, you may be entitled to compensation for any lost wages. The injuries from an accident can also affect your ability to perform your work duties or limit your ability to work even during the hours when you are not undergoing specific medical or therapeutic treatments. Loss of revenue due to an accident should be a part of any personal injury claim. Sometimes an injury can force you to miss work for a period of time, then allow you to return to work on partial duty until you are completely healed and able to resume your regular duties. In some cases, an injury can be permanently disabling and career-ending. This may result in you needing job training for a new career or even being permanently disabled from working at all. These damages need to be documented and verified as part of any demand for damages due to an accident.
WHAT ABOUT FUTURE DAMAGES?
Finally, there are damages that are reasonably probable to be sustained in the future. These are harder to identify, quantify and prove but this can be done, usually with independent witnesses. One category that most people easily understand would be future possibly necessary surgeries or other treatments for an injury. Another example would be the cost of ongoing care from an in-home assistant for someone who is incapacitated from their injuries with no clear date of when, if ever, the person will be able to function without assistance.
Pain and suffering are very real and must be addressed and evaluated in any personal injury claim. In order to prevail on these claims, one must have evidence in the form of records, as well as the testimony of the injured person and others who witness the challenges the person faces in going through daily life with the injuries sustained. If you are injured in an accident, it is important to keep good records of anyone or anything that can support your claim of pain and suffering.
Do not fall prey to the outdated notion that because you can’t see it, it is not important. Physical pain is real. Depression and stress are real. Even if you haven’t seen a mental health professional during the course of your treatment, it never means that a judge or insurance adjuster should not evaluate these factors as part of your personal injury settlement or court verdict.