If you were in a car accident and are making an injury claim, how do you include pain and suffering as a component of your case? This article will give you some pointers.
What is "Pain and Suffering"?
Personal injury law usually divides pain and suffering into two types: physical and mental. Physical pain and suffering includes pain, discomfort and other physical effects of car accident injuries. It also includes conditions like scarring, disfigurement, and permanency of the injuries.
Mental pain and suffering has to do with non-physical suffering. Things like mental anguish, emotional distress, loss of enjoyment of life, fear, anger, humiliation, anxiety, shock, or embarrassment are all varieties of mental pain and suffering.
However, mental pain and suffering can also lead to physical manifestations. People suffering from mental or emotional distress can experience bouts of crying, severe anger, loss of appetite, weight fluctuations, lack of energy, sexual dysfunction or loss of interest in sex, mood swings, and/or sleep disturbances. Very severe mental pain and suffering can qualify as acute stress disorder or even post-traumatic stress disorder (PTSD) after a car accident.
How Do You Prove Pain and Suffering?
Car accident victims prove their pain and suffering in two ways, through their medical records and through their own statements and/or testimony.
Most doctors agree that pain cannot be proven or documented objectively, but health care providers certainly record their patients’ complaints of pain in their medical notes.
If you were in a car accident and have pain, it is important for you to tell your health care providers where and how much you hurt. This is important both medically and legally. It is important medically because your doctors cannot treat you unless they know what your complaints and symptoms are. It is important legally because, if your medical records do not show any complaints of pain, then the insurance company and the jury will generally assume that you did not have any pain. Without documented complaints of pain, a car accident victim’s case is worth much less than if the medical records show the victim’s complaints.
The second way a car accident victim proves his/her pain and suffering is through his/her own statements and testimony. If you file a car accident lawsuit, you will testify at your deposition and again at trial, if the case does not settle, about your complaints of pain. Both the defense attorney and your lawyer will give you the chance to describe your symptoms in complete detail. You should take that opportunity to talk about your pain. This is not the time to play the strong, but stoic type. Again, if you do not explain your pain to the defense attorney and to the jury, they will think that you must not have suffered much pain and will not value the pain and suffering component of your case very highly.
Proving Pain and Suffering When Settling a Case
If you are trying to settle your case without suit, you need to send copies of all of your relevant medical records and bills to the insurance adjuster. You also need to prepare a good car accident demand letter to the adjuster that explains your pain and suffering and how it affected your home and work life. This will be the adjuster’s only real opportunity to learn how you were personally affected by the accident, so you need to spend some time putting this letter together.
You want to summarize your pain and suffering experience by telling the adjuster the following things:
- the severity of your pain
- what made the pain worse and what made it better
- whether you had good days and bad days
- how often you needed to take pain medication
- when the pain began to improve
- the things that you couldn’t do in your personal life due to pain and why
- the things that you couldn’t do in your employment due to pain and why
- when you became pain free. If you still have pain when you write the letter, explain that.
But you don’t want to go into so much detail that the letter reads like a sob story. Too much detail and the adjuster won’t take it seriously. You have to walk a fine line in telling your story.
Do I Need to See a Mental Health Care Provider?
Because pain and suffering is often mental rather than physical, people sometimes think that they would need to see a psychologist or therapist in order to properly document their pain and suffering. This is not the case.
Most personal injury plaintiffs do not see (and do not need to see) a mental health care provider. Ordinary, run-of-the-mill pain and suffering is not so severe that the sufferer needs to see a mental health care provider. Most people don’t seek mental health care for pain and suffering progresses unless it becomes really severe, like PTSD.