You may be familiar with the phrase “pain and suffering,” but not realize that it plays a central role in many personal injury cases. How do insurance adjusters and courts define pain and suffering? What evidence is used to prove it? And how is it calculated in an injury-related insurance claim or lawsuit? If you think you need a personal injury lawyer, please contact Falk & Klebanoff today.

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What Is "Pain and Suffering?"

In any kind of personal injury case, which includes those arising from a car accident, a slip and fall, or medical malpractice, the injured person's losses (called "damages" in the language of the law) fall into one of two categories:

1. Economic damages, which includes accident-related medical bills, lost income, and property damage.
2. Non-economic damages, which often comes down to the injured person's "pain and suffering."

When it comes to non-economic damages, most injury claimants experience two types of pain and suffering: physical pain and suffering and mental pain and suffering. Let's take a closer look at these two areas.

Physical Pain and Suffering

This includes pain and physical discomfort resulting from the following aspects:

• Claimant's actual physical injuries from the underlying accident.
• Medical procedures, including surgeries, and other medical care necessary to treat the claimant's injuries.
• The day-to-day recovery process of the claimant.

Mental Pain and Suffering

This aspect is more of a by-product of the claimant's physical injuries, but this side of things is no less significant. Mental pain and suffering includes the following aspects:

• depression
• anxiety
• sleeplessness
• mental anguish
• emotional distress
• loss of enjoyment of life
• mood swings
• lost appetite

How Is Pain And Suffering Calculated In a Personal Injury Case?

As a central element of non-economic damages, pain and suffering is inherently difficult to assign a precise monetary value. In the uncommon situation where a personal injury case proceeds to trial, judges typically provide juries with minimal guidance on how to calculate it; in many states, jurors are simply asked to rely on their judgment, life experience, and common sense to determine a fair amount.

In reality, however, most personal injury claims are resolved through settlements, often without ever reaching court. Although insurance adjusters don’t rely on a fixed formula to determine pain and suffering, they commonly use general methods to estimate a reasonable range, largely based on the severity of the claimant’s injuries. These include the following:

• using a "multiplier" method
• calculating a "per diem" figure

Besides the seriousness of the claimant's injuries, other factors that affect the value of the pain and suffering component of a personal injury case include:

• Whether the claimant will be a good or bad witness in court.
• Whether they are likeable and credible.
• Do they seem to be exaggerating their claims of pain and suffering.
• Do the medical records support the claimed extent of pain and suffering.
• Whether the claimant's diagnosis and injuries and the effects of their injuries would make common sense to a jury.
• Whether the claimant has a criminal record.

How Do I Prove Pain and Suffering In a Personal Injury Case?

Ultimately, the seriousness of your injuries is often the critical factor in putting a dollar value on pain and suffering. This means proving this component of your case often means establishing the nature, extent, and impact of your injuries through the following:

• Medical records documenting your injuries and your conversations with your health care providers about how your injuries are affecting you. This includes not just physical discomfort but also effects on sleep, mental health, and emotional state.
• A "personal injury journal" is important. It helps keep a detailed, day-to-day record of how the injuries are impacting all aspects of life.
• Expert witness testimony and related evidence on the typical, expected impact of injuries like yours.

Does Pain and Suffering Include Loss of Consortium?

The answer depends on the laws in your state. In a personal injury case, “loss of consortium” refers to how an injury affects a person’s close personal relationships—most often a spouse or partner, but it can also apply to relationships such as those between a parent and child.

In a personal injury lawsuit, a loss of consortium claim may be included as part of the injured person’s case, sometimes as a component of pain and suffering, depending on the jurisdiction. In other situations, a family member may need to file a separate, independent claim against the party responsible for the injury.