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What is pain and suffering? Part 1 - Physical pain and mental anguish

Tears.jpgNon-economic or "general" damages are most commonly referred to as "pain and suffering," but the concept includes so much more. It includes physical pain and emotional pain, both in the past and future. It includes disability, disfigurement, and loss of enjoyment of life. It includes fear, frustration, worry, doubt, uncertainty, and sadness. The law provides no formula for placing a dollar value on any of these "intangibles," and so it is ultimately up to a jury to determine what they are worth. If you want to settle your claim, you and the insurance company will have to agree on the value of your pain and suffering. In order to maximize your claim, a good attorney will get to know you and how your injuries have affected your life. He will then make sure the insurance company knows exactly how your life has been turned upside-down, and he will seek to get you a recovery for each type of non-economic damage recognized by the law.

In this series of blog posts, I will discuss different elements of non-economic damages: what they mean, how they are calculated, and how they can determine the outcome of your claim. The first element we will discuss is physical pain and mental anguish.

PHYSICAL PAIN AND MENTAL ANGUISH

The most common element of non-economic damages, present in pretty much every case I see, is a claim for physical pain and mental anguish. This is the actual pain a person suffers from his injury and the direct emotional impact it has on the person's life. This element is truly "pain and suffering," although it is only a portion of the non-economic damages an injured person may recover.

In presenting a claim for pain and suffering, either in a demand to an insurance company, to an arbitrator, or to a jury, it is essential that the pain and the resulting emotional distress be described with as much specificity as possible. For example, which of the following descriptions gives you a clearer picture of a person's pain? "When I tilt my head back, I get a headache," or "I have a dull throbbing at the base of my skull all the time, and when I tilt my head back, I get a sharp stabbing pain like someone is driving a nail through my left temple and into my brain."

Pain can be burning, stabbing, aching, pulsing, throbbing, sharp, electric, constant, or intermittent. It can be all over or in a very specific part of your body. It can be there all the time, or only when you do certain things. If you are able to describe the pain with as much detail as possible, it will help your attorney present your case more effectively. If your attorney is not asking you these questions, perhaps you should bring it up with her.

When I was injured, I first felt tightness and burning on the right side of my neck and below my right shoulder blade. After a few months, as those symptoms improved, I began to notice a deep aching in my left lower back and hip. Eventually, this ache progressed to a sharp, shooting pain from my lower back, through my hip, and down my left leg all the way to my two little toes. Being able to describe the pain this way helped my doctors diagnose and treat my condition, but it also helped support my legal claim for damages.

In addition to the actual pain from the injury, there is the emotional suffering that goes along with it. This suffering can be in the form of despair or hopelessness, fear, anxiety, frustration, anger, depression, and more. In a typical case, emotional distress can be established without the need for mental health treatment, but in the most severe cases, an injured person needs to seek counseling for depression or anxiety.

In my case, I was afraid I would never get back to my pre-accident condition, that I would always be in pain, and that I would always be limited in what I could do. I worried I wouldn't be as good a provider for my family and that I wouldn't be as fun to be around. I worried that I would always have to go to doctor appointments and that my injuries would dominate my life. While most of those worries turned out to be unfounded, they were real, and the law provides compensation for them.

I have seen many cases where my client was terrified to get into a car for weeks or even months following an accident. In cases like these, a behavioral therapist can help him overcome his fears while at the same time providing documentation to support the claim for emotional distress.

CONCLUSION

While physical pain and emotional anguish are very real, and can be significant parts of your injury claim, they are not the only elements of non-economic damages that are recoverable. In the next blog post I will discuss the elements of disability, disfigurement and loss of enjoyment of life.

If you have been injured in an accident of any kind, and are suffering from non-economic damages, contact a qualified personal injury attorney to make sure your recovery includes all of your damages - not just your medical bills.

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