Can you sue for pain and suffering? It depends
Pain and suffering is a key element in many personal injury cases whether it’s the result of medical malpractice, a defective product, or a slip and fall accident. There are two types of pain and suffering:
Physical pain and suffering: This is the pain that the plaintiff is suffering for actual physical injuries. It includes the pain and suffering endured by the plaintiff to date as well as the detrimental effects that the plaintiff will most likely suffer in the future as a result of the negligent action of the defendant.
Mental pain and suffering: Includes mental anguish, emotional distress, loss of enjoyment of life, fear, anger, humiliation, anxiety, and shock. It is the byproduct of the plaintiff being physically injured.
While personal injury cases can be complex, pain and suffering lawsuits are even more challenging because pain and suffering is subjective. How do you prove the existence as well as the degree of mental trauma or pain to a jury in a personal injury case?
Some of these cases end up going to trial, but many are resolved through a negotiated settlement. Hiring a lawyer to file a lawsuit, especially one that is experienced in litigating cases involving pain and suffering, increases your chance of getting a fair settlement.
The problems with pain and suffering claims
Determining how much your pain and suffering case is worth is difficult because, as stated before, an individual’s mental and emotional well-being and how much physical pain they’re experiencing is subjective.
Insurance companies typically use computer programs when calculating a value for pain and suffering. These programs will take into account a variety of factors including:
- Cost of treatment
- Lost wages
- Property damages
Once these economic damages have been calculated, a multiplier (between 1-5) will be used to determine the plaintiff’s pain and suffering. The multiplier used is related to the type and severity of the injury. The multiplier method is commonly used by insurers, but they’re not under any obligation to calculate your settlement using this method.
In addition, some states have limits on pain and suffering damages. Limits on pain and suffering in California apply to product liability and medical malpractice cases. California has a cap of $250,000 on pain and suffering compensatory damages.
Proving and winning your case
There are ways to substantiate pain and suffering claims, including:
- Testimonies of friends and family members attesting to the effects of plaintiff’s injuries on his or her life.
- Written reports and/or testimony from a counselor, psychologist, or psychiatrist who has treated the plaintiff.
- The diary or journal of the plaintiff which documents levels of pain, trauma, anxiety, and other related injuries.
While proving pain and suffering is a tough job, the key to getting a fair settlement that can compensate you for physical pain as well as emotional trauma is hiring a personal injury attorney who knows how to prove pain and suffering and can take an aggressive approach when it comes to negotiating with the insurance company.
Scott S. Harris, personal injury attorney in San Diego, has more than 30 years of experience helping individuals throughout California obtain compensation in personal injury cases. Contact our office to schedule a free initial consultation.