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.
How Much is Your Injury Claim Worth?
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Visitor Questions on Emotional Distress / Mental Anguish
Is getting fired for grieving legal? My daughter passed away from a heroin overdose 6/7/16 and we had her funeral on 6/10. I returned to work on the 13th because I liked my job and I thought it would keep my mind occupied. On Thursday I asked my boss for a copy of a book he had about recruitment (that was... Read More >>
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Are verbal and mental abuse eligible for pain and suffering? The following was done to my adult 24 yr old daughter, who has battled depression and anxiety for several years. She also contemplated suicide and was hospitalized a year ago. All of this is known by her close friends. Here is what happened… My daughter traveled last weekend with a close friend, who has a... Read More >>
Intestate Mistake… My life partner’s life insurance beneficiary form was lost by his employer. As a result the insurance went to his three children: a gambling drunk, a marijuana addict/grower, and a meth addict. I am on the verge of losing my home and all my assets as a result of this action. The employer also lost... Read More >>
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Should my son get a settlement if he wasn’t physically injured in accident? My son and I were involved in a car accident that was the other driver’s fault. She struck our vehicle while we were stopped at a light. My son suffered emotional stress, but no physical injury. Is my son entitled to an insurance claim with no injury? I was advised that since he was involved... Read More >>
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Man dressed in all black pointed a fake weapon at me in a Target store… Today, I was shopping at Target and as I made my way thru the store, I encountered a man, dressed all in black, with a black helmet on, carrying a large gun. He was walking away from me, so I turned and went down a different aisle. I was PANIC stricken! In today’s climate, I... Read More >>
Therapist Intentionally Inflicting Emotional Distress… My grandson is Bipolar and was receiving therapy and medication from an outpatient clinic. Everything was fine until his therapist left and a new one replaced him. The new therapist would deliberately frustrate him and provoke him into tantrums. She was more upsetting than helpful. She then did not want to see him for therapy,... Read More >>
Can I sue for distress due to a dealer’s service department’s negligence? I had a new 2013 Hyundai purchase in 2012 with a “Drive Worry Free Program” from the “Dealer for the People.” I agreed to do all services with the dealer and in return I’d receive free tires, and battery & engine replacement for life (drive worry free service contract). I drive 1 hour to the... Read More >>
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Distraught due to bridesmaid dresses missing for my wedding… The seamstress was contracted to make 11 bridesmaid dresses before the wedding. The bride and the maid of honor maintained contact with the seamstress. The seamstress also had several meetings at the bride’s home. The bridesmaids also had contact with the seamstress exchanging calls and text messages. The seamstress’s last fitting was at the wedding... Read More >>
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Claim for pain and mental anguish not due to physical injury? I am a victim of the mortgage foreclosure scandal. I endured more than a year of constant abuse; e.g. misleading, inconsistent, and lost correspondence, written and verbal abuse, extensive delays, etc. They foreclosed, again alleging noncompliance with their directive to send in paperwork. My eviction is imminent. I’m now depressed, suicidal, have insomnia and constant... Read More >>
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Pushed Into a Swimming Pool… My 6 year old son was pushed into my neighbor’s swimming pool by an older child. My son can not swim. He only cut his knee but he was traumatized by the incident. No one brought him home or bothered to contact me after he was pulled out of the pool. He had to walk... Read More >>
Can I sue for psychological trauma after being accosted in a mall parking lot? My daughter and I were accosted in a mall parking lot December 23rd. After I pulled into a parking space someone else had evidently thought they had dibbs on, the couple pulled their car around to the next aisle and, screaming across the lot, cussed me out and flipped me off. My 12-year-old was scared... Read More >>
Compensation for Depression Due to Child’s Injury? My child was injured in a restaurant. He was hit in the face with a tray and received a lot of stitches across the middle of his face. I have suffered severe depression dealing with his pain and suffering. I have also taken a substantial amount of time off work which I am asking to... Read More >>
Compensation for Post Traumatic Stress Disorder? I was in a car accident. My psychologist said that I have Post-Traumatic Stress Disorder (PTSD) from the accident. I’m wondering if it’s possible to be compensated in a personal injury vehicle accident with minimal doctors visits? Also, is it possible to get compensated in a personal injury case for psychological damages incurred? Read More >>
Emotional Distress of Extra Marital Affair… I just found out that my husband and neighbor (friend) had an affair. She knew that we were married but instead of saying no she let it happen. My husband and I are trying to work things out and even moved from the location. But it is not fair that I have to deal with... Read More >>
Suing for Pain and Suffering in a Child Custody Case… I have a case right now where my ex-boyfriend is suing me for father rights for our one year old baby. I would like to know if it’s worth suing for pain and suffering. To make a long story short, since all of this started I have been having a lot of money issues since... Read More >>
Having Nightmares After the Accident… I lost control of my vehicle on a gravel road and the accident caused my SUV to flip 3-4 times and we landed in a ditch. We were fine after the accident because everyone had on their seat beats. However, my daughter is still having nightmares every day. How much should the settlement be for... Read More >>