Suing for Pain and Suffering

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 What Are Pain and Suffering Damages?

Pain and suffering damages are a type of legal remedy that is ordered to be paid to an injured party (i.e., a plaintiff) in connection with a personal injury claim. Personal injury is the legal term that refers to an injury to the body, mind, or emotions, as opposed to damage or injury to property. A personal injury award may involve economic or non-economic damages in the total damage award to a plaintiff.

Economic damages are defined as damages that are measurable and objectively verifiable, while non-economic damages are defined as subjective, unquantifiable non-monetary losses. Pain and suffering damages fall under the category of non-economic damages.

Economic damages may be awarded to individuals who were injured by substandard healthcare, severely disabled as a result of a healthcare injury, or even injured in a motor vehicle accident.

Non-economic damages may also be awarded to those individuals who experienced loss(es) due to substandard healthcare or a car accident. However, non-economic damages are often capped and watched carefully to ensure that they do not become excessive.

In general, pain and suffering damages are intended to reimburse the plaintiff of a personal injury claim for losses that are connected with their injury. The term “pain and suffering” is somewhat broad and can be difficult to define, and the definition will differ depending on the laws of the jurisdiction in which the injury occurred. Pain and suffering damages may include any of the following injuries or damage claims:

  • Damages resulting from neck or joint pain from whiplash and other types of car accident injuries;
  • Damages resulting from nerve damage from a faulty surgical procedure;
  • Damages resulting from emotional conditions resulting from trauma;
  • Damages resulting from grief over the loss of a loved one.

It is important to note that proving pain and suffering damages sometimes requires the testimony of an expert medical witness, economist, or psychological expert. Once again, the exact laws governing pain and suffering damages will be dependent on the jurisdiction in which the personal injury claim is being brought.

When Are Pain and Suffering Damages Awarded?

Once again, pain and suffering damages are non-economic damages that are typically awarded in tandem with an economic damage award. As mentioned above, non-economic damages (i.e., “general” damages) are not measurable. This means that non-economic damages cannot be calculated by adding up medical expenses and lost wages.

Instead, general damages compensate for non-monetary, not readily quantifiable losses. Examples of non-economic damages include:

  • The injury itself;
  • Emotional distress;
  • Disability or disfigurement;
  • Pain and suffering;
  • Physical impairment;
  • Loss of companionship;
  • Loss related to the plaintiff’s reputation; and/or
  • Loss of enjoyment of life.

Because pain and suffering is a type of non-economic damage, it is highly subjective, and the amount awarded will vary from case to case. Additionally, since pain and suffering damages are by nature difficult to calculate, they are subjected to strict guidelines that are determined by each individual jurisdiction.

However, in order to receive pain and suffering damages, the plaintiff must first prove their personal injury claim. More specifically, a negligence personal injury claim involves the plaintiff claiming that the defendant injured them as a result of breaching a duty of care that the defendant owed to the plaintiff.

The duty of care owed to a plaintiff will largely depend on the circumstances of the case at hand. In general, a defendant is under a legal duty to exercise the same degree of care that an ordinary person would use under a similar set of facts.

Whether or not a duty of care to a plaintiff exists depends upon the foreseeability or predictability of harm that may result if the duty is not exercised. In other words, the “test” for whether or not a plaintiff is owed a duty of care asks:

  • Would an average person in the position of the defendant foresee that the type of injury sustained by the plaintiff was likely to occur?
    • If the answer is yes, then the defendant owes the plaintiff a duty of care. Additionally, if the defendant breaches that duty, which causes an injury resulting in damages, the defendant has committed personal injury through negligence.
    • If the answer is no, then no duty is owed to the plaintiff, and the defendant cannot have committed negligence.

The plaintiff might be able to prove that the defendant’s breach resulted in an injury that resulted in them suffering damages. If that is the case, the plaintiff has made a claim for negligence and may make a request for damages that may include pain and suffering damages.

Personal injuries that result in pain and suffering can occur from any event. However, the most common types of personal injury accidents are:

How Much Can I Get Out of Pain and Suffering?

Many states will only allow for pain and suffering damages based on proof of economic damages. As such, pain and suffering and other non-economic damages are calculated according to a specific formula in proportion to the economic damages awarded in the case.

Additionally, certain federal limits are placed on non-economic damages. Under federal law, these damages must be reasonable. They cannot be incredibly high when compared to the awarded economic damages. Thus, you cannot be awarded more for emotional distress than lost earnings.

For example, you may be involved in a motor vehicle collision, and your economic damages are calculated at $10,000. In this case, you will likely not receive more than $100,000 in non-economic damages. Non-economic damages are typically limited to no more than ten times the amount of awarded economic damages.

What Are Some Guidelines When Suing for Pain and Suffering?

Because pain and suffering damages are not easily measurable, it is important to be specific in your damages claim when requesting pain and suffering damages as a part of your non-economic damage claim. This is because purely imaginary damages created by a plaintiff will not be awarded.

Additionally, there is a greater chance of having pain and suffering damages issued if there is a physical manifestation as a result of the injury. For instance, if there is evidence of a stomach ulcer developing from the stress of dealing with the incident, physical disfigurement, or therapy related to post-traumatic stress disorder (“PTSD”), that will be helpful in making a claim for pain and suffering.

As such, when filing a personal lawsuit that involves a claim for pain and suffering damages, it is in the plaintiff’s best interests to:

  • Try to be as specific as possible when presenting their physical and mental condition
    • Once again, vague conditions that can’t be proven will not result in a damages award;
  • Make a log of their injuries before and after the incident in order to help a fact finder determine how their pain and suffering is related to the incident;
  • Keep any and all written legal documents, such as police reports, medical receipts, pharmacy bills, lost wage evidence, communication logs, and other documents that can be introduced as evidence of pain and suffering.

Do I Need a Lawyer for Help When Suing for Pain and Suffering?

If you have been personally injured and are making a claim for pain and suffering damages, then it is in your best interests to consult an experienced personal injury lawyer. Once again, damages, whether economic or not, are generally awarded solely because of a personal injury lawsuit.

As such, an experienced personal injury lawyer is often necessary in order to assist a plaintiff in making a proper damage claim against the responsible party or their insurance provider.

An experienced personal injury attorney will also be able to inform you of your rights and legal options and help you understand the laws regarding pain and suffering damages in your jurisdiction. An attorney will also be able to help you initiate and file a personal injury claim, including a pain and suffering damages claim, on your behalf. Finally, an attorney will also be able to represent you in court as needed.


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