In personal injury claims, the phrase “pain and suffering” describes a combination of the physical pain and emotional distress a victim suffers due to the accident and their injury. Almost all personal injury claims should include a demand for pain and suffering reimbursement.
Everyone experiences physical pain. Injuries to our muscles, bones, or internal organs can cause severe pain, which may continue for weeks, months, or even years. Personal injury victims can 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 are no computer programs to rely on. Each of us experiences pain differently. Even with today’s advanced medical technology, the best method doctors have for measuring a patient’s pain is a self-rated pain scale. This is when a doctor asks, “On a scale of 1 to 10, how would you rate your pain?”
Unfortunately, we don’t have a universal reference tool that measures pain in a way attorneys and insurance companies can use to calculate settlement amounts. It’s intangible, and therefore very difficult to measure.
In a personal injury claim, you must be able to clearly communicate your level of pain. You’ll have to convince the adjuster of the depth of your physical suffering. This is done by describing how movements associated with everyday actions have become excruciatingly painful, and how your normal activities have been limited.
Persistent physical pain often contributes to the emotional toll of an injury. Physical suffering is sometimes so closely associated with the pain of emotional distress, that they become one and the same. As a result, similar methods and evidence can be used to prove both physical pain and emotional distress.
Emotional distress, also called “mental anguish,” describes very real injuries suffered by victims due to the negligent or willful acts of another. Some claims adjusters view emotional distress as a ploy to get more money out of insurance companies, but that’s incorrect.
Emotional distress is real, and it can be debilitating. A car accident, slip and fall, dog attack, or other accident can result in injuries that forever change the life of its victim.
Most personal injury victims experience some type of emotional distress in varying degrees of severity. When negotiating with the insurance adjuster, the most effective way to articulate your emotional distress is by discussing its symptoms.
Symptoms of emotional distress include:
- Loss of consortium
Unfortunately, simply telling the adjuster you suffered from one or more of these symptoms may not be enough. To persuade him to actually reimburse your pain and suffering, you must provide evidence and 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 convincing than simply stating, “I can’t sleep.” You will be discussing personal matters, so be heartfelt and openly communicate the emotional strain the accident has put on you and your family.
Example: Emotional Distress Due to a Car Accident
For years, Sally has been driving her children to school, soccer games, and other extra-curricular activities. The drives were an enjoyable time, spent laughing with her children and talking about how their days went.
Since her car accident, however, Sally is tense and nervous 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 now resents having to drive. 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. Sally also now has difficulty sleeping, and can’t enjoy her husband’s companionship.
Sally is anxious because she doesn’t know when her symptoms of emotional distress will end. She 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 completely changed.
Sally is suffering a variety of symptoms due to the trauma of her auto accident. These symptoms have a serious adverse effect on her quality of life. When negotiating with the claims adjuster, Sally should specifically describe each of these symptoms and the context in which they occur.
“Getting personal” is good when describing your emotional distress and mental anguish. Don’t hold back. Emotional distress is an injury just as real as a broken arm or a concussion. You have a right to pain and suffering reimbursement for ALL of your injuries.
Evidence to Support Your Claim
Although you know your emotional distress is real, it’s still necessary to have tangible evidence of its existence. Adjusters need to account for every dollar of compensation they pay. The evidence you provide gives the adjuster a good reason to pay more. The more credible evidence you have, the better your chances of a higher settlement.
Tangible evidence of emotional distress includes:
- Mental health narratives
If you have access to a licensed counselor, psychologist, psychiatrist, or even your family physician, have them write a narrative with their professional evaluation of your mental and emotional condition.
Get letters from your loved ones, friends, church pastor, employer, and co-workers confirming in their own words how they’ve observed your emotional condition since the accident. They may have noticed you’ve been depressed or crying for seemingly for no reason, or appear fatigued. Objective sources will carry more weight.
Keep a journal of how you feel during your recovery. Records of your day-to-day thoughts and feelings can in some cases be used as evidence of emotional distress in a trial.
Compile a list of your prescription medications, particularly those for depression, anxiety, or other psychological symptoms. Do some research to find their intended uses and dosages. You can use the Physician’s Desk Reference (PDR) at your local library, or refer to websites such as WebMD.com, or RxList.com.
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
- Lost wages
For minor to moderate injuries, you’ll place a multiple of 1 – 5x on the total of your special damages. The number depends on the seriousness of your injuries, and whether they were soft tissue or hard injuries. The more serious the injuries, the higher the multiple. For very serious injuries, you’ll need an attorney to calculate the proper demand.
Once you’ve determined your multiple, multiply your total costs by that number to get the amount you feel accurately represents your suffering. The result is the total amount you will demand for a final settlement. Although basic, the multiple method does help give you a rough starting point for your demand.
You should also use jury verdicts from similar cases to help inform your settlement demand amount. You can find previous verdict information at VerdictSearch.com. By researching what cases with similar fact patters have settled for in your city and county, you’ll get a good idea of how much your case is worth.
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