The term “pain and suffering” encompasses both physical pain and mental or emotional anguish. Often, physical pain and mental distress are connected. Limitations from chronic pain after an injury, for instance, may cause distress, anguish, depression, fear, and other burdensome mental and emotional states. In some cases, mental distress produces physical symptoms, such as heart palpitations related to anxiety.
Plaintiffs’ pain and suffering is often a real loss – but it’s rarely quantifiable in terms as simple as medical bills or lost days of work. Rather, attorneys seeking to prove plaintiff pain and suffering in personal injury cases may need to turn to medical experts on pain, trauma, and related conditions. These experts can help clarify the full extent of a plaintiff’s physical pain and mental suffering.
Sources of Information on Plaintiffs’ Pain
Many physicians who treat chronic pain ask patients to keep a “pain journal” documenting their daily experience. Often, pain journals will ask patients to rate their pain on a numeric scale, then mention what they did that day and whether any factors increased or decreased their pain.
A plaintiff’s pain journal can provide additional support for their pain and suffering claim – or it can raise a host of marginally relevant issues that the plaintiff’s counsel must battle through in order to establish their client’s right to compensation.
A journal the patient keeps independently may be deemed “non-privileged” by a court. Such journals are then subject to the discovery process. A journal kept due to a doctor’s request or recommendation, or as part of the treatment process, may or may not be treated as a medical record – but it may be discoverable in either case.
The sooner counsel knows about a journal, the easier it is to digest its contents and plan accordingly. For this reason, it’s important to ask about patient journals early in the process, especially if the patient complains of ongoing physical or mental anguish or medical records indicate the presence of these.
Experts: Severity, Permanency, and Pain Management
Acute and chronic pain both involve the experience of physical pain. Yet they vary greatly in their causes, treatment, management, and prognosis.
The Cleveland Clinic distinguishes acute and chronic pain thus:
- Acute pain has a direct cause, often a specific injury or illness. When the injury or illness is resolved, the pain is resolved as well.
- Chronic pain lasts longer than six months and is not related to a specific injury or illness.
Pain may begin as acute pain yet become chronic. For instance, a broken bone may cause acute pain at the time of the break and while the bone is healing. The patient may also experience acute pain while rehabilitating muscles and connective tissues surrounding the break. If the pain lingers after the bone has fully healed and muscles are strong again, however, it is more likely to be classified as chronic pain.
The Cleveland Clinic notes that chronic pain can cause additional physical conditions beyond the sensation of pain itself. Muscles may tense to “protect” the area in pain. Chronic pain can limit mobility, reduce physical and mental energy, and produce changes in appetite and mood.
In pain and suffering cases, an expert witness may be needed to clarify the differences between acute and chronic pain. An expert on chronic pain can also explore the severity and permanency of such pain and the connection between physical pain and mental suffering.
Chronic pain can often be managed, but it cannot always be cured. An expert witness can also clarify issues surrounding the plaintiff’s current and prospective pain management options.
When Plaintiffs Have Pain and Suffering Without Medical Expenses
Medical bills are a form of “economic” damages, while pain and suffering are a form of “non-economic” damages. While the two types of compensation are often related, they are treated separately in a legal sense – and they can exist separately in actual plaintiffs.
The most common example of a claim in which plaintiffs have pain and suffering but no medical expenses is one in which a plaintiff suffers extreme mental or emotional trauma but no physical harm.
One illustration is a car accident in which the driver is not injured but is forced to deal both with the crash itself and the trauma of watching another person, such as a family member riding in the vehicle, suffer severe injuries or death. While the driver may have no physical injuries, grief, shock, or post-traumatic stress may profoundly impair the driver’s ability to carry on with their life after the crash.
In some such cases, a driver may seek mental health treatment, producing a medical record and corresponding medical expenses. The cost and scarcity of mental health resources, however, may prevent some plaintiffs from obtaining help even if they seek it. These plaintiffs will have no paper trail or bills for treatment, yet still bear the mental and emotional suffering of their ordeal.
These cases will benefit from an expert witness who can discuss the mental and emotional effects of the defendant’s negligence on the plaintiff. Here, it will be important to clarify that the expert has not treated the plaintiff – in fact, the expert is focused on what happens when patients like the plaintiff cannot access treatment. Handled well, this evidence can form a powerful basis for a pain and suffering award even in the absence of medical bills.
Pain and suffering are treated as a separate category of damages from medical losses because there is no quantifiable correlation between medical treatment and the plaintiff’s distress. While physical pain and mental suffering can arise from physical injuries or medical treatment, pain and suffering may persist long after injuries have healed and medical treatment has ended. Navigating discovery issues and choosing the right experts can help plaintiffs’ attorneys clarify the distinction between medical events and pain and suffering to establish a plaintiff’s right to compensation for ongoing pain and anguish.