The distress of an emotional or physical nature that stems from an accident injury may be recoverable in a personal injury suit as damages for pain and suffering by the party who endures them. Pain and suffering are classified as noneconomic damages, which are nonpecuniary damages that may be recovered by a party who incurs harm involving impaired quality of life, emotional distress, and inconvenience. This is a separate category from economic damages such as damage to property, medical costs, losses of future income, and others that are relatively easy to quantify. Determining the appropriate amount to award for pain and suffering is typically the responsibility of a jury, and there are no clear (exact) means of calculation.
Proving Pain & Suffering
Photo & Video
Visual evidence of harm is usually a very effective tool is legitimizing an injury claim. Keep in mind that some injuries may not be immediately visible following the accident, yet will surface over the next few days. You may want to take a series of photos documenting the healing process over time. Videos are another excellent tool. Videos and/or photos showing your condition prior to the injury can be effective, such as those showing participation in enjoyable activities or hobbies. Video footage of efforts made to rehabilitate from injury, like participating in physical therapy, may be a good way to present your injuries.
Maintaining a Journal
Using a journal on a day-to-day basis to track aspects of your injury such as bruises, pain, and soreness can be a good way to document your pain and suffering following an accident injury. Make a note when you experience limitations in what you are able to do physically or notes of any difficulty sleeping. If you return to work, write a brief summary of any tasks that you now struggle with or are unable to complete.
Some of the medical documents that can assist you in building a claim for pain and suffering damages include:
- Diagnosis summary
- Treatment plan
- Therapy progress notes
- Medications list -- e.g., for pain or inflammation
- Any medical equipment or assistance products
- Medical bills
Medical Professional or Expert Testimony
Medical expert testimony is not required for claims of pain & suffering; however, such testimony is likely to be convincing and potentially used to counter any experts provided by the Defendants. Information from a medical professional that was involved in your particular case would be helpful, like a surgeon, therapist, or possibly a mental health professional who can attest to your distress.
Accounts from Other Individuals
Having others attest to the pain and suffering you experienced may be worthwhile. One example would be a friend or loved one that you often see who can explain how you have struggled since the accident occurred. Co-workers could possibly explain how the injury has affected your work. These types of testimonials are typically more effective when expressed by an observer.
Factors that can Influence Compensation
Some common factors that may influence an award for pain and suffering include:
- The severity of the injuries incurred, like those injuries that are life-altering
- Length of recovery time, any required surgical procedures, and the manner and/or duration of the rehabilitation needed
- Potential long-term or permanent effects
- Whether the plaintiff is found to have been negligent to some extent in the incident (contributory negligence)
- The plaintiff's age
- The negative impact on future earnings.
Much more can be an influential factor, too, it depends on the unique facts and circumstances of your case.
Limitations (Caps) on Pain & Suffering Awards
The Colorado legislature imposed limitations on noneconomic damages like pain and suffering. The cap is $250,000 with the potential for exceptions up to $500,000 in cases where there is “clear and convincing” evidence to justify the additional amount. Since then, these amounts have been adjusted for inflation and are currently $468,010 and $936,030, respectively.
Recovery for the plaintiff's pain and suffering is not applicable in cases of wrongful death or survival actions. Noneconomic damages that are allocated for “permanent physical impairment” are not subject to the caps that apply to pain and suffering. There are typically no such limitations (caps) on the amount of compensation for economic damages such as medical expenses.
There is a lot of information and evidentiary proof that goes into calculating pain and suffering in its monetary form. If you have been injured in an accident and are feeling the pain and suffering from the injury, you should seek legal counsel.