If you are pursuing an injury claim after a car accident, most states allow you to include a claim for pain and suffering as part of your damages. However, putting a monetary value on your pain and suffering can be one of the most difficult aspects of the claim.
Pain and suffering is a very difficult thing to prove, and even harder to quantify. You cannot “see” pain in a person. A doctor might be able to observe symptoms, such as limited ranges of motion in a joint, tenderness upon touching a certain part of your body, or redness in your throat. But those are merely indicators of pain.
Even if the presence of pain is unquestioned, it is even more difficult to determine the severity of the pain. Every person is different. Each one of us has a different threshold of discomfort. A level of pain that may cause one person to awaken in the middle of the night and go to the hospital emergency room may cause another person to just go to the medicine cabinet for an over-the-counter painkiller.
Pain and Suffering are General Damages
Generally speaking, there are two types of pain and suffering that accompany a claim for bodily injury. The first is for physical pain and suffering, and the second is for the mental anguish that accompanies a physical injury. The law characterizes these as “general damages.” Unfortunately, there is no set formula for arriving at a value for your general damages.
With many types of injuries, because the significance of the injury is common knowledge, there is a presumption that the injury will be painful. For example, we all know that a broken bone requires medical treatment, possibly even surgery. The bone break will require a healing period that often includes immobilization in a cast. Sometimes the break in the bone is so severe that the doctor will insert instrumentation such as pins or screws to help the bone heal. We know from our common experiences that the injury and the recovery can cause extensive physical and mental suffering.
If the injury is less obvious the question becomes more complicated. For example, soft tissue injuries are a common result of a car accident. Soft tissue injuries can take many forms. Bruises or cuts are very obvious even to the layperson. They indicate that a hard object impacted the skin or muscle and caused damage to the tissue. But other types of soft tissue injuries are less obvious. Damage to muscles, ligaments, tendons and other soft tissues do not show up on x-rays. Yet almost all of us have experienced muscles strains and sprained ankles. When we experience these injuries we know that the pain is very real and sometimes severe.
How Does the Insurance Company Evaluate Pain and Suffering?
It is important to understand that any insurance company handling your bodily injury claim begins its analysis with one very important assumption: If you didn’t go to the doctor, you’re probably not in any pain.
Though there are exceptions to every rule, the insurance company often assumes that injuries that result in a greater amount of medical treatment include more pain and suffering than injuries that need minimal medical treatment. The insurance company also assumes that injuries that require a lengthier recovery time inherently cause more pain and suffering than those where the recover time is short. These assumptions affect how insurance adjusters value an injury claim.
Following a car accident, if you chose not to seek medical treatment for your injury, the insurance company will probably not attach much value to your injury. This may be the case despite the fact that you know you’re in pain, and that the injury is quite real to you. From the insurance company’s position, it’s just your word that you were injured and that you’re experiencing pain and suffering.
The insurance company is much more likely to place a higher value on your injury if there is some medical corroboration of your injury. For example, take the situation where you have a soft tissue injury that is not readily observable to a doctor. If you seek medical treatment for that injury, the doctor will listen to the description of your symptoms and conduct a physical examination. The doctor will then note in your medical records that you came into the clinic and complained of pain or discomfort in certain areas of your body following the car accident. The doctor’s notes will also include findings from the physical examination.
The insurance company will then have access to your medical records as part of your injury claim evaluation. To the insurance company, the fact that you took the time from work or school to go see the doctor is in itself some evidence of the validity of your injury. To the insurance company, if you weren’t really in pain, you wouldn’t have gone to all that effort to relieve the pain. The same applies for any lost time from work. Most people don’t get paid unless they show up for their jobs. So, if you were off work as a result of a car accident, this also tends to support your claim that you have experienced pain and suffering following the accident.
What Type of Evidence Does the Insurance Company Review?
In determining the value of your pain and suffering, the insurance company will review many types of supporting documentation that tend to corroborate your claim. So it is very important to be mindful of the types of records the insurance company might find useful, and to keep these records for future use. These could include:
- Medical records
- Medical bills
- Prescription records
- Photographs of your injuries
- Receipts for over-the-counter medications, and
- Documentation from your employer of any lost time from work