The Daily Business Review reported that in 2017, a driver in Fort Myers was reportedly high on heroin when he crashed into the plaintiff’s vehicle. The plaintiff and her two children, who were in the backseat, were seriously injured. Initially, the other driver was arrested for driving under the influence, but he later pleaded guilty to lesser charges. His auto insurance company agreed to cover the cost of the children’s injuries but argued their mother’s injuries were mostly the result of a pre-existing condition. She filed a Fort Myers injury lawsuit. The defense conceded liability, but the plaintiff still had to prove the full extent of her damages – which included pain and suffering.
Here our South Florida injury attorneys explain what pain and suffering are in the context of tort law and what legal recourse you have to be compensated for it.
What Exactly is Pain and Suffering?
Pain and suffering are a type of non-economic damage that refers to the impact of physical and mental pain caused by one’s injuries.
Physical pain and suffering refer to things like the pain experienced during the incident and throughout recovery, whether that is through therapy, surgery, or other treatments. It can also refer to the inability to perform with ease the physical activity a person once enjoyed.
Mental pain and suffering refer to things like depression, anger, embarrassment, humiliation, insomnia, and fear a person might suffer as a result of the accident.
How is Pain and Suffering Valuated in a Fort Myers Injury Lawsuit?
Non-economic damages like pain and suffering are subjective, abstract losses, meaning they are not easily quantified into a dollar figure. There are no hard numbers involved, unlike economic damages, which are established with things like medical bills, evidence of lost wages, and other concrete evidence.
Pain and suffering are difficult to determine because emotions do not show up on medical scans the way physical injuries do.
Some of the factors that come into play when determining the value of a pain and suffering claim include:
- Severity of the physical injury. In Florida, tort claims for mental or emotional distress or suffering must be tied to a physical injury. If your physical injury was relatively minor and involved a quick recovery, you are unlikely to get much – if at all – for pain and suffering. However, if you suffered from a traumatic brain injury or lost the use of an appendage, your mental and emotional injuries will also be considered more severe.
- Type of required medical treatment. Some injuries can be treated with a single-course prescription of pain medicine and some extra rest, while others require surgeries, casts, assistive devices, and months or years of therapy. If your injuries require intense treatment, it is likely the value of your pain and suffering claim is higher.
- How long it takes you to recover. Will your injury have you out-of-work for weeks? Unable to enjoy the activities and people you love for months? Years? Will you ever fully heal? Usually the longer your recovery time, the higher your pain and suffering compensation.
- How the injury has impacted your life. If you are left with a lifelong disability, that is inevitably going to result in more pain and suffering than if you have sustained an injury from which you will eventually fully recover. How has this affected your ability to do your job? Enjoy your hobbies? Maintain meaningful relationships with family, friends, and your spouse?
How Can You Prove Pain and Suffering?
Our injury lawyers establish pain and suffering damages with several different types of evidence. These include:
- Physician records and testimony spelling out the exact nature of your injury and how it impacts your ability to function.
- Prescription drug records indicating medications for anxiety, depression, or pain that begin right after your injury.
- Testimony from a mental health professional who can attest to your state of mind throughout your recovery.
- Testimony from the plaintiff and loved ones, along with photos and videos that can show the extent of one’s day-to-day suffering.
In the Fort Myers car accident case, the plaintiff’s injuries included a herniated disc in her spine, mild traumatic brain injury, and chronic post-traumatic stress disorder. The defense argued that she had suffered bouts of depression in the past. Yet even the defense’s own expert witness psychologist agreed that the plaintiff suffered PTSD after the crash, particularly stemming from the fact that her children were involved and she was not able to protect them.
An experienced personal injury attorney can give you more insight into whether you have grounds to assert pain and suffering damages, what type of evidence you’ll need to prove it, and how much your claim is worth.
If you are injured in the greater South Florida area and are interested in talking to us about how we can help, contact our injury attorneys at The Garvin Firm at 800.977.7017 for a free initial consultation.
Additional Resources:
$4.6M Verdict After Comparing Damages to Defense-Expert Fees, April 27, 2020, By Raychel Lean, The Daily Business Review