What Is 'Pain and Suffering' In a Personal Injury Case?

You may have heard the term "pain and suffering," but you might not necessarily know that it's a key component of many personal injury cases. But how do insurance adjusters and courts define pain and suffering, how do you prove it, and how is pain and suffering calculated in an injury-related insurance claim or lawsuit? Let's answer those questions and a few more.

What Is "Pain and Suffering"?

In any kind of personal injury case—including 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:

• economic damages (including accident-related medical bills, lost income, and property damage), and
• non-economic damages (which often comes down to the injured person's "pain and suffering")

Breaking down the concept of non-economic damages a bit further, most injury claimants experience two types of pain and suffering: physical pain and suffering and mental pain and suffering.

Physical pain and suffering includes the pain and physical discomfort resulting from:

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

Mental pain and suffering 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:

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

Does Pain and Suffering Include Loss of Consortium?

It depends on the law in your state. In a personal injury case, "loss of consortium" refers to the impact that the injuries have had on the claimant's intimate relationships—usually that means a relationship with a spouse or partner, but loss of consortium can also involve other close relationships, like those between a parent and child.

In a personal injury lawsuit, the injured person might make a "loss of consortium" claim part of their own case—and it may or may not be considered a component of "pain and suffering"—or the injured person's family member might need to file their own independent loss of consortium claim against the person who caused their loved one's accident.

Learn more about loss of consortium in a personal injury case.

Examples of Pain and Suffering In Personal Injury Cases

Let's look at a couple examples of how the pain and suffering component of damages might play out in a personal injury case.

Pain and Suffering After Serious Injuries

First, let's take an example of a claim involving more serious injuries: a car accident causing multiple broken bones and a severe concussion. These injuries alone would be expected to lead to significant physical pain and suffering, but in the wake of the accident, the claimant also became depressed and angry, had difficulty sleeping, and experienced significant loss of appetite.

The claimant was referred to a therapist, and then to a psychiatrist, who ended up prescribing an anti-depressant. All of these issues are directly related to the accident, and make up the the claimant's mental pain and suffering due to the accident.

Pain and Suffering After a Minor Injury

Now let's use the example of an in-store slip and fall that results in back strain. Physical pain and suffering might be minimal, but the claimant is prevented from running in a marathon they trained months for. This claimant might have no need for mental health assistance, but their frustration and disappointment, while comparatively minor, still qualify as mental pain and suffering.

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

As the key component of non-economic damages, pain and suffering is, almost by definition, difficult to capture with a dollar figure.

In the rare event that a personal injury lawsuit makes it all the way to trial, even judges don't give juries much in the way of guidelines for determining the value of the plaintiff's pain and suffering; in most states, judges simply instruct juries to use their good sense, background, and experience in determining a reasonable figure to capture the plaintiff's pain and suffering.

But the truth is that most personal injury cases settle, often without a lawsuit ever being filed in court. While insurance adjusters don't use a magic chart to plug in a pain and suffering figure, they do have a few common methods of arriving at a ballpark number based mostly on the seriousness of the claimant's physical injuries. These include:

• using a "multiplier" method
• calculating a "per diem" figure, and
• relying on a software program called "Colossus."

For details on how valuation typically works in the most common kind of injury claim, learn more about how pain and suffering is determined in a car accident case.

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're likeable and credible
• whether they seem to be exaggerating their claims of pain and suffering
• whether 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, and
• whether the claimant has a criminal record.

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

As we saw in the previous section, the seriousness of your injuries is often the critical factor in putting a dollar value on pain and suffering, so proving this component of your case often means establishing the nature, extent, and impact of your injuries through:

• medical records documenting your injuries and your conversations with your health care providers about how your injuries are affecting you (including not just your physical discomfort but also effects on your sleep, your mental health, and your emotional state)
• a "personal injury journal" in which you keep a detailed, day-to-day record of how your injuries are affecting all aspects of your life, and
• expert witness testimony and related evidence on the typical, expected impact of injuries like yours.

Learn more about gathering evidence in your personal injury case.

Getting a Lawyer's Help With a Personal Injury Claim

Having an experienced lawyer on your side can be crucial to getting the best result for any kind of personal injury claim, especially when the pain and suffering component looks like it's going to play a key role. A personal injury lawyer will work with you to put together the best narrative, framing the effects of your injuries and their impact on your life in the most honest and effective way.

Learn more about when you need a lawyer for a personal injury claim, and get tips on finding the right injury lawyer.