What is ‘Pain and Suffering’ in a Personal Injury Case?

Pain and Suffering

Disclaimer: The materials on this website (a) have been prepared by Express Legal Funding LLC (Express Legal Funding) for informational purposes only, (b) do not constitute legal advice, and (c) are not guaranteed to be complete, up-to-date, or accurate in all respects as laws are constantly changing.

Pain and Suffering

Personal injury claims are pursued when you have suffered an injury due to someone else’s carelessness. These claims are designed to ensure you receive the proper restitution for your medical needs and compensate for any pain and suffering you experienced from the injury.

One question you may have after reading such a statement is, “what exactly is pain and suffering?” The reality is, even though these claims are designed to help you recover the costs of your medical treatment, they are also designed to try and help you on a more personal level.

Pain and suffering can be difficult to measure and define. There are many components in these injury cases, so this article won’t discuss things other types of damages like property damage or special damages.

Instead, we hope to give you some insight and guidance into what constitutes “pain and suffering” when negotiating a personal injury case.

Let’s get started!

What’s Pain and Suffering?

The phrase ‘pain and suffering‘ is thrown around rather often in the legal world, especially when filing a personal injury claim. However, the exact nature of ‘pain and suffering’ and how it relates to resolving a personal injury claim can be a little vague and lead to a fair amount of misunderstanding about the concept.

The ‘pain and suffering’ admissible for consideration for a personal injury claim is more straightforward than you might otherwise believe and is simultaneously quite specific. There are two sub-categories of ‘pain and suffering’ that can be considered when dealing with a personal injury claim. Let’s dig into them both.

The First Form: Physical Pain

The first and perhaps most apparent pain and suffering is pain from your physical injuries. This pain refers explicitly to the bodily injuries that a victim sustained due to the accident claim being filed. However, this is not simply about the injuries you have suffered to date, but the long-term ramifications these injuries will have on your everyday life going forward.

For example, if a car accident has left an accident victim permanently confined to a wheelchair, they may be entitled to remuneration for this significant change to their quality of life. Depending on the type of injury, the term “pain and suffering” may come up more frequently.

Significant bodily injury, such as disfigurement and brain injury, may have a greater argument for pain and suffering than a sprain or even broken bones. This may also lead to other claims, such as “loss of consortium.”

Example of Physical Pain

Physical pain also includes other types of symptoms that you may feel. For example, you may feel numbness, tingling, or a burning sensation in your body. Scars and surgical incisions on your hands and forearms can make using an oven or freezer painful. Scars from surgeries can even make it painful for you to take a shower.

Another pain and suffering issue that can result from an injury is that you may only feel pain when moving various body parts such as your head or neck in certain directions. Limitations of body motion are also a very important element to present to a jury when describing your pain and suffering. You may feel no pain, but you have excruciating pain once you move your body in any direction.

Whether in a deposition or on the witness stand, you can explain how long you can stand or sit without experiencing pain or physical problems, as well as how far you can walk without experiencing the pain and physical suffering from your injury.

You can describe how your life has changed for the worse due to this accident by explaining, for example, that you can no longer run, play sports, or even have a romantic relationship due to the pain and physical problems from your accident.

These details will be factored into the negotiations with the defendant’s adjuster before or at trial. The physical pain of the crippling injury and the suffering you’ve endured from the accident can be easily observed and submitted by your law firm. This is where the legal process takes over to prove that the defendant’s actions were negligent and that they were the ones at fault.

The Second Form: Mental Pain

The second type of pain and suffering is the mental component. Rather than focusing on the actual physical effects of the injuries, the significant mental anguish that arises from them is just as viable for consideration and compensation.

One of the most common mental conditions with injury victims is post-traumatic stress disorder (PTSD), which can severely impact your mental health and your ability to go about your daily life without suffering from nightmares or panic attacks when the memory of the incident is triggered.

Further, when considering the possibility of permanently being crippled by your severe injuries, many can develop depression from being confined to a wheelchair or other medical mobility aid that restricts the way you can move and go about your preferred activities.

Example of Emotional Pain

Trauma can take a toll on an individual and impact their personal and professional life. This mental toll and emotional distress will most likely require professional intervention to process and learn to cope, and those are all new expenses that you didn’t have before the accident.

There are even terms such as “loss of enjoyment of life,” which are common with people who lose the ability to walk, communicate with family members, or function as they normally would. This is why the emotional pain you endure is also considered during the negotiation process between your personal injury attorney and the claims adjuster.

Of course, the more severe and traumatic the injury, the more that the mental component should be considered by an insurance adjuster or a judge and jury at trial.

The concept of pain and suffering refers to the consequences of an injury or accident that leaves you permanently or severely damaged. It cannot be taken lightly and is also something that needs to be proven as a genuine consequence before the adjuster (or the court) can provide compensation. Once the extent of your pain and suffering from the accident is thoroughly analyzed and understood, the next step is having it factored into your personal injury settlement.

How to Prove Pain and Suffering

Proving that you have endured pain and suffering following the accident can be a difficult thing to accomplish, especially for an insurance adjuster, whose job is to mitigate risk and minimize the damages as much as possible. So, providing the best possible evidence you can regarding the extent of this pain and suffering is crucial to giving them no other option than to offer a fair settlement for your costs and suffering alike.

Proving your physical suffering might seem like an odd concept, but it is an entirely feasible task to accomplish. Acquiring the evidence involves gathering the appropriate documentation that no adjuster or jury could refute. Your personal injury lawyer will already be looking to obtain copies of your medical records and bills to prove that you sought treatment and the exact cost of that treatment.

Proving Pain and Suffering

The more advanced the treatment, the more likely an adjuster will be to accept that you endured a greater level of suffering than might be apparent at first glance. However, additional documentation can make excellent evidence of the degree of pain and suffering you endured due to the defendant’s negligence. For example, photographic or video evidence of the incident or even the aftermath can prove the severity of the incident.

Proving your mental suffering can be a little more complicated and less feasible. If you find yourself suffering mental trauma due to the incident that caused your injury, you should immediately start detailing your thought processes in a journal. Outlining these thought processes can provide claims adjusters with great insight into the genuine mental strain you were enduring due to the trauma. However, journals on their own will likely not be sufficient to sway the adjuster.

The real key is seeking out psychological treatment as soon as the symptoms of mental trauma begin to manifest. The longer you wait to seek mental therapy, the less likely the severity of your mental pain and suffering will be believed by the insurance adjuster or jury. Your therapist will be taking detailed notes of your diagnoses and their insight into how it can relate to the trauma you went through.

If you are willing, you can have these notes presented to the adjuster as proof that you suffered mental trauma from the accident. However, even once you have proven your suffering with the appropriate documentation, your settlement will still not be guaranteed.

Calculating Pain and Suffering

When calculating the settlement amount for your injuries, the primary guideline leans toward the overall cost of your medical expenses. However, there is no guaranteed settlement amount and will be applied based on the circumstances of your accident.

The way pain and suffering factor into these negotiations is a much more ambiguous process. Pain and suffering is a type of non-economic damages. There are no official guidelines to apply to something as subjective as this.

The reality is that your attorney will review the situation to the best of their ability and compile the costs of your medical bills to kick off the negotiations. Unfortunately, when it comes to compensation for pain and suffering, insurance companies try to limit your recovery using ‘multiplier methods’ that do not take into account pain and suffering.

Calculating Pain and Suffering

The same multiplier used will be inconsistent from case to case since and will vary amongst different insurance companies. There is no default multiplier to calculate your settlement amount. Therefore, the multiplier is not something you should be reliant on when anticipating the resolution of your claim.

In addition to being paid for your pain and suffering and the extent of your medical bills, you should be compensated for lost wages. Lost wages due to the accident will substantiate your pain and suffering claim. Insurance adjusters will question how much pain and suffering you endured if you did not miss work.

What Affects the Settlement?

While your medical bills serve as the driving force of your settlement amount, it is contingent on other factors that can either make or break your entire claim. The wrong steps can lead to your entire claim being dismissed with a pittance at best, and these particular factors are dependent entirely on you.

Likewise, the pain and suffering amount you are awarded is contingent on these factors and can be higher or lower depending on how you carry yourself throughout the process.

What Affects The Settlement

One of the most significant parts of ensuring your settlement is congruent with your injuries is making sure that your treatment is harmonious. Attempting to overtreat to maximize your settlement amount and boost the multiplier for pain and suffering compensation will only hurt you in the long run.

One of the essential things about successfully earning compensation for pain and suffering and the general settlement for medical costs is remaining credible and not exaggerating your injuries in any way.

If your injuries are severe and have left you in a difficult position, this should be treated and considered during these negotiations. Intentionally overtreating to try and maximize the rates will only discredit you and leave you unable to collect any remuneration for your injuries and costs.

In addition to maintaining credibility and not abusing treatment, you also need to provide a consistent retelling of events and the treatment you sought. If the story of the treatment you received is inconsistent with your story or vice-versa, you will once again face the scrutiny that could ultimately cost you in the long run.

Again, honesty is the best policy for personal injury claims, as anything less will drain your credibility. This requirement is especially true if your claim ends up going to court and being presented to a jury rather than remaining in negotiation between your attorney and the defendant’s claims adjuster.

Ordinarily, a personal injury claim is only ever taken to trial in a personal injury lawsuit if your attorney, with your input and consent, and the adjuster cannot agree about what constitutes a fair settlement. Suppose the adjuster continuously rejects the amount requested by the claimant in the demand letter, which considers your medical bills when the request is made.

In that case, the claim will likely be sent to litigation to be evaluated by a jury. The dollar amount and total funds would then be decided and divided according to how the jury sees fit.

Closing Statements

Pain and suffering are genuine phenomenons that come from suffering a significant injury and can be an extremely debilitating and life-altering experience. Accidents can leave an injured person both physically and mentally damaged and sometimes unable to live life to the degree they once knew and enjoyed.

Closing Statements

The biggest challenge lies in proving the pain and suffering to those who dictate what you are awarded and why, but once that is done, you should enjoy resources you can use to attempt to pick up the pieces.

Unfortunately, no matter your pain or the severity of the injury, you are still obligated to maintain your personal and financial responsibilities, and it’s often challenging to stay in a legal battle while maintaining your medical treatment. Fortunately, you or a loved one can use other solutions to keep your head above water.

For example, with legal funding, a company can provide you with the amount of money you need to pay for necessary services and housing until the claim is resolved. The money is advanced in exchange for a portion of your potential settlement or trial award. The best part is that it is a zero-risk investment since you are only obligated to repay them from the financial recovery on your claim. Contact Express Legal Funding today for a free consultation.

Author profile
Strategy Director at

Aaron R. Winston has more than ten years of experience in the consumer finance industry. Most of which was as a consultant to a financial advisory firm, managing $400+ million USD in client wealth. As Strategy Director of Express Legal Funding, he has devoted thousands of hours advocating for the consumer. He has become a leading expert in writing about pre-settlement funding. His work has been granted copyright protection by the United States Copyright Office.

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