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What exactly is “Pain and Suffering”? This broad theory of recovery has different meanings to different courts. For example, in California, an injured person may receive compensation not only for cost reimbursement, but also for the psychological suffering resulting from the other person’s negligent acts. Accordingly, “Pain and Suffering” damages are generally available in most civil tort injury claims.
There are two types of pain and suffering damages. The first type relates to “physical pain and suffering”. This means the pain experienced from the actual injuries themselves. These might include short or long term pain associated with the specific physical injuries, such as nerve pain, neck, back, joint, headaches and others. The second category of “pain and suffering” involves the psychological anguish of the accident experience. Psychic pain includes depression, anxiety, grief, post traumatic stress syndrome (PTSD), embarrassment and more.
Every injured individual must demonstrate by a preponderance of the evidence (more than likely) that the pain and suffering occurred. As with other forms of non-economic damages, proving such pain is often difficult. The suffering of the injured person exists along a continuum between mild and likely not compensable, and very severe. Very serious cases of “pain and suffering” often involve depressive episodes, anger, sleep disturbances, sexual dysfunction, mood swings and a loss of appetite and energy.
In either case it is important to note that while no general cap exists for these injuries in, for example California, damages for both of these “non-economic” categories of pain and suffering are limited to $250,000 in medical malpractice claims. Apart from this unique cap, both types of pain and suffering are calculated based on a unique assessment of your personal circumstances. Not only are past pain and suffering calculated to determine a financial award, but expected future pain and suffering should be included in your eventual settlement.
Certain broad factors play a role in determining the outcome of your “pain and suffering” financial compensation. Some of these variables are more relevant to your eventual compensation than others, but remember that each of these factors are either expressly or implicitly considered by a jury when assessing the credibility of your pain and suffering. These factors include:
- Past criminal records
- Are you likeable?
- Do you sound credible?
- Do the claims of injuries make sense to a jury?
- Has the injured person lied about anything, even if minor?
- Any reason to believe the injured is exaggerating their pain?
- Is the injured person’s testimony consistent?
- Do medical records and physician reports support your pain and suffering claims?
- Is the injured person a good or bad witness?
While this list is not exclusive, it is subjective for the most part, so there is a lot of room to swing eventual pain and suffering compensation for better or worse. A qualified personal injury attorney can assist you in preparing your case for a jury to ensure you receive full value for your mental pain and suffering.