Pain and Suffering Reimbursement and Emotional Distress



In personal injury claims, pain and suffering describes a combination of the physical pain and emotional distress a victim suffers because of the negligent or willful acts of another. The term is frequently associated with car accidents, slip and falls, defective products, medical malpractice and other events causing injuries. Almost all personal injury claims include a demand for pain and suffering reimbursement.

Physical Pain

Everyone experiences physical pain. It might be from a bruised arm, a headache, or a stubbed toe. The physical pain from injuries to our muscles, bones, or internal organs can be severe and may continue for weeks, months, or even years. Personal injury victims often experience pain from jarring of their neck or back, a broken or sprained knee or ankle, head trauma, lacerations, or any number of other injuries.

When it comes to determining the extent of physical pain, there aren't any computer programs to rely on. There are no measuring sticks. Even with today's advanced medical technology, the closest doctors and nurses usually come to measuring a patient's pain is by a self-rated pain scale. This is when the doctors ask, "On a scale of 1 to 10, with 1 being the least amount of pain and 10 the worst, how would you rate your pain?"

Unfortunately, we don't have a way of measuring physical pain and converting it into a universal reference tool that attorneys and insurance companies can use to calculate reimbursement amounts. Pain is unique to everyone. It's intangible and therefore very difficult to measure for personal injury settlement purposes.

You must be able to communicate your level of pain to the insurance company's claims adjuster. You'll have to rely on your best communication skills to convince the adjuster of the depth of your physical pain. The suffering from physical pain is sometimes so closely associated with the pain from emotional distress that both seem to become one. As a result, the same methods can be used to prove both physical pain and emotional distress.

Emotional Distress

Emotional distress is also called mental anguish. Both terms describe very real injuries suffered by victims because of the negligent or willful acts of another. Some view emotional distress as a ploy to get more money out of insurance companies. That's wrong thinking. Emotional distress is real and can be debilitating. A car accident, slip and fall, medical malpractice or other injury can forever change the life of its victim.

Having to deal with the physical pain can be extremely difficult. Movements associated with everyday actions can become excruciatingly painful. Persistent physical pain often contributes to the emotional toll of the injury. Many personal injury victims experience some type of emotional distress in varying degrees of severity. When negotiating with an insurance adjuster, the most effective way to articulate your emotional distress is by discussing its symptoms.

Symptoms of emotional distress can include:

  • Anxiety
  • Depression
  • Guilt
  • Frustration
  • Sleeplessness
  • Bitterness
  • Loss of appetite
  • Loss of consortium

Telling the adjuster you suffered from one or more of these symptoms may not be enough. To persuade him to pay more, you must clearly explain how those symptoms affected you. Giving specific examples of the reasons for your anxiety or depression, or why you can't sleep since the accident will be more impressive and convincing. Even though you are relating personal matters, openly communicate the emotional strain the accident has put on you.

Example: Emotional Symptoms Due to a Car Accident

Sally has driven her children to school for years. She's also taken them to soccer games and other extra-curricular activities. It was an enjoyable time spent laughing with her children, listening to how their days went, and more. Since the car accident, Sally is tense and nervously watchful behind the wheel. She scolds her children when they laugh or otherwise distract her from driving. She feels terrible, but ever since the accident she can't help it.

Sally is bitter and resents the other driver. She feels guilty for being mean to her children. She's frustrated because she doesn't want to feel this way, but she can't help it. It's now difficult to sleep and Sally can't enjoy her husband's companionship. She's anxious because she doesn't know when her emotional distress and its symptoms will end. Sally hopes it will get better as the days and weeks go by. And it probably will, but in the meantime her life as she knew it before the accident has changed.

Sally is suffering a variety of symptoms due to the trauma of her automobile accident. These symptoms have a seriously adverse effect on her life. When speaking with the insurance adjuster, Sally should specifically describe each of these symptoms and the context in which they occur.

"Getting personal" is good when describing your mental anguish. Don't hold back. Emotional distress is an injury just as real as a broken arm, concussion, or other type of serious physical injury. You have a right to pain and suffering reimbursement for all of your injuries.

Evidence to Support Claims of Emotional Distress

Although emotional distress can be very real, it's still necessary to have tangible evidence of its existence when negotiating your claim. Adjusters need to account for every dollar of compensation they pay. Any tangible evidence you can provide will give them good reason to pay more. The more credible the evidence you submit to the adjuster, the better your chances of a higher settlement.

Tangible evidence can include:

Mental health narratives
If you have access to a counselor, psychologist, psychiatrist, or even your family physician, have them write a narrative with their professional evaluation of your mental and emotional condition.

Letters
Get letters from your church pastor, employer, co-workers, loved ones, friends and acquaintances confirming in their own words how they've observed the adverse effects the injury has had on you. They may have noticed you've been crying or have been depressed seemingly for no reason, or appear fatigued. The more objective the writer is, the more powerful your evidence will be.

Journals
Keep a diary or journal of how you feel during your recovery. Recording your present recollections is a time-tested tool which in some cases can be used as evidence of emotional distress in a trial.

Prescriptions
Compile a list of your prescription medications, particularly those prescribed for depression, anxiety, sleeplessness, etc. Do some research to find their intended uses, dosages, and contraindications. One excellent resource is the Physician's Desk Reference (or PDR). You can also refer to websites such as WebMD.com, RxList.com, and many others.

The Value of Emotional Distress

Placing a value on your pain and suffering requires you to first revert to the value of your special damages (or specials). Your specials are the total of your:

  • Medical and therapy bills;
  • Out-of-pocket expenses; and
  • Lost wages.

You'll place a multiplier on the total of your specials of one to five (or more). This depends on the seriousness of your injuries and whether they were soft tissue or hard injuries. (The more serious the injuries, the higher the multiplier.)

You'll increase that multiple to represent your emotional distress. The greater your emotional distress and mental anguish, the higher the multiple. When you arrive at your multiple, the number you feel represents your suffering accurately, factor it into the multiple for your specials. The result is the total multiplier you will use when making your demand for a final settlement.

For example, if you were assigning a multiple of two for the seriousness of your injuries and believe your emotional distress to be worth bumping it up an additional level, you would multiply your specials by three to represent your total compensation amount. Add that to the cost of specials, and that's your settlement demand.

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