Shoulder pain is a unique condition because unlike other types of pain, where discomfort makes movement merely difficult, shoulder pain can prevent shoulder motion altogether. Some shoulder pain conditions are so severe that the shoulder becomes “frozen.”
Shoulder pain may involve a combination of factors, including impinged nerves or weakened muscles. Shoulder pain can be particularly debilitating since it will typically affect a person’s use of their hands and arms.
Some common causes of shoulder pain include:
- On-the-job injuries
- Repetitive strain (such as when a worker is required to perform heavy lifting or lifting of objects above the head)
- Slip and fall accidents
- Accidents caused by another party’s negligence
- Medical malpractice (i.e., defective shoulder surgeries, misdiagnosis, etc.)
- Overexertion (using the shoulder after it is already fatigued)
Can I Recover Damages for Shoulder Pain?
It isn’t possible to sue over shoulder pain that arose spontaneously. However, it is possible to recover damages in some cases of shoulder injury. There are two principal legal theories by which you can recover damages for shoulder injury:
- Someone acted negligently
- A company is charged with strict liability
What is Negligence?
Negligence is the legal theory that allows injured persons to recover for the carelessness of others. A person is negligent if they were careless given the circumstances of the situation.
Negligence has four major parts that must be shown in order to recover for injuries: Duty, Breach of Duty, Causation, and Damages
A duty is a responsibility one person owes to another. In general, people going about their business owe a duty of ‘reasonable care.’ ‘Reasonable care’ is the care an ordinary and prudent person would use in the same situation.
An example of negligence causing a shoulder injury would be where the defendant did not exercise reasonable care while driving, and an accident occurred which caused injury to the plaintiff’s shoulder.
Breach occurs when an individual’s care falls below the level required by their duty. Perhaps there was a rainstorm and the defendant should have been driving at or below the posted speed limit, but was actually going 10 miles over the limit and thus became unable to stop in time to avoid a crash. In this example, the defendant breached the duty of using reasonable care when driving an automobile.
The breach of duty must be the cause of the injury. Generally this means that “but for” the defendant’s lack of care, the injury would not have occurred.
In general, there has to be some sort of harm that occurred. This can be tricky to prove in a case that involves only pain and no other symptoms. In other cases, reduced mobility can help prove a shoulder injury, but an expert medical witness may be needed.
Also, one issue with shoulder pain is the idea of pre-existing injuries. Shoulder injuries are often subject to re-injury due to frequent use of the shoulder joint. Recovery of damages may be limited or sometimes even prohibited if the defendant simply re-aggravated an existing injury.
One special kind of negligence is medical malpractice. Medical malpractice occurs when a doctor, other medical professional, and/or healthcare organization dips below the standard duty of care required when managing, diagnosing, or treating a patient, resulting in an injury to that patient.
Some common examples of medical malpractice claims include:
- Improperly diagnosing or failing to diagnose a patient
- Prescribing the wrong treatment or wrong medication
- Operating on the wrong body party (e.g., amputating their left leg instead of right leg)
- Failing to follow-up after a patient receives a serious procedure
- Prematurely discharging a patient before they have recovered well enough
- Leaving behind medical equipment (e.g., instruments or sponges left inside a patient) during a surgery
- Inputting erroneous data into a patient’s medical chart, causing harm to the patient
Are There Any Defenses to Negligence?
There are a number of defenses to an allegation of negligence. The most obvious is to dispute any of the components of negligence (meaning duty, breach, causation, or damages).
Two related defenses are contributory and comparative negligence. Depending on state law, one or the other will apply, but the general idea is the same. Both defenses ask whether the person injured is in some way responsible for the injury they suffered. In contributory negligence jurisdictions, any lack of care by the plaintiff is a total bar to recovery (meaning they get nothing). In a comparative negligence jurisdiction, the injured person can still recover, but the recovery is reduced by how negligent they themselves were.
Assumption of the Risk is a defense that is essentially saying the injured person knew they were doing something inherently dangerous and chose to do it anyway. If this defense is successful, then the defending party will not have to pay for damages. For example, playing football is an activity that could result in a shoulder injury, and a defendant could argue that the plaintiff knew of the risk and so should not recover damages.
Another theory by which you could recover for shoulder pain is “strict liability.” A product manufacturer has the unique position of earning and keeping the public’s trust. In the eyes of the law, they have set themselves up to create and sell a product that users should be able to trust and not worry about being injured.
A product manufacturer who betrays that trust and creates a dangerous product, even unintentionally, can sometimes be held liable for any injuries that result. An example could be if a company makes football shoulder pads that break in half the first time they are hit in a game; the company could be held strictly liable for any shoulder injuries that occur.
In order to win a strict liability lawsuit, the plaintiff must show the following:
- The plaintiff must show proof of injury;
- The plaintiff must prove that the defendant’s actions or product caused the injury
- The plaintiff must show that the defendant’s product was unreasonably hazardous or dangerous
What Damages Can Be Awarded?
Depending on the nature of your shoulder injury, you may recover various losses. In general, most persons can recover the following financial costs concerning a shoulder injury claim:
- Medical costs, such as hospital fees and prescription medication costs
- Work-related costs, such as worker’s compensation benefits
- Lost wages, if the injury caused the person to lose work hours (may also include loss of future earnings)
- Punitive damages, if the injuries were caused intentionally (not available for all cases)
- Damages associated with pain and suffering
What Type of Evidence Do I Need to File a Shoulder Pain Lawsuit?
If you have suffered a shoulder injury, take the following steps to make sure that you have enough evidence to satisfy a claim:
- Record all important information related to the injury or accident: the date when the pain started, the circumstances that gave rise to the pain, who was involved, etc. Be sure to include how the pain has affected your life
- If there were witnesses, interview them to obtain any testimony and information. Witnesses’ memories will fade over time, so it’s best to collect information as soon as possible. This helps them store it in their memory
- Be sure to keep and make photocopies of all medical documents related to the injury
- Keep track of all expenses you incur related to the pain or injury
Do I Need a Lawyer If I Have Shoulder Pain?
Suing over shoulder pain and injury can be a complicated and expensive problem. A local personal injury lawyer can help you through your case. Your lawyer will help you evaluate the strength of your case, help with negotiations with the other party, help you gather evidence (including witness testimony), and speak on your behalf in court if it comes to that.