General Damages / Pain and Suffering

General Damages / Pain and Suffering

There are two types of damages in a personal injury case. There are special damages discussed in another section and general damages. We discuss general damages in this section. General damages are also referred to as pain and suffering. Valuing someone’s pain and suffering takes an experienced personal injury attorney years to grasp. The biggest hurdle to valuing an injured victim’s pain and suffering is the lack of understanding by both the injured victim and the inexperienced attorney.

When an injured victim is asked about his or her pain and suffering, we usually get comments like “This accident has ruined my life” or “I am not the same anymore” or “I can’t do anything anymore” or the worse, “Doesn’t the medical records say it.” First and foremost, the medical records do not say anything about how this has affected your life. Now with that dispensed of, onto what is this elusive term “pain and suffering.”

An inexperienced personal injury lawyer will take the above and usually present that to the insurance company or insurance attorney hoping that they will get maximum compensation for their client’s pain and suffering. This will almost always fail for several reasons. First, because of the inexperience of the personal injury attorney, he/she doesn’t know what questions to ask his/her client. Second, again because of the inexperience of the attorney, he/she has failed to educate their own client on what “pain and suffering” really means. Last, again, because of the inexperience of the attorney, the insurance company or attorney, has no clue how the accident has really affected or will continue to the effect the lives of their client. An experienced personal injury attorney can do all of the above in order to maximize recovery.

Here is an example we usually tell our client’s when talking about “pain and suffering.”  Imagine for one minute that Jane was injured in auto accident. In that accident, she suffered a right shoulder injury and was required to wear a sling on that shoulder. Basically, her entire arm is permanently stationary in one position 24 hours a day. She is also right-handed. If Jane is asked, please tell me about your pain and suffering, Jane may say “it has ruined my life and I can’t do anything I used to do before.”  What does that tell us? Nothing really. But imagine if the lawyer asked some simple questions like the following:

Q: When you wake up in the morning, how do you get out of bed with your right shoulder in a sling?

A: Well, normally, I would use both hands and push myself up off the bed and get up. Now, after the accident, I would have to roll over on top of my left arm, and use my left arm to push myself up off my bed.

Q: Is that difficult?

A: Yes.

Q: Is it painful?

A: No, not really.

Q: Ok, what about when you’re are still sleeping, are there times in the middle of the night that you accidentally roll over onto your right shoulder.

A: Yes.

Q: Is that painful?

A: Yes.

Q: Describe to me the pain, and what I mean is, what is the quality and quantity of the pain? Let me also explain to you by what I mean by that. Quality of pain is often described as sharp, dull, achy, stabbing, etc… Quantity of pain is referred to as to the level of pain, like 2 out of 10. Further let me explain what that pain scale means as well. Zero is no pain at all. Ten is the most excruciating pain you can imagine, and if you tell me that your pain level is a 10, you better be at the emergency room.

A: Oh ok, so when I accidentally roll on top of my right shoulder, I wake in excruciating pain. The pain is sharp and stabbing. It is about 5 out of 10.

Q: How long are you up?

A: About 30 minutes to an hour.

Q: How many times does it occur per night?

A: Once or twice.

Q: How do you feel when you wake up?

A: I feel tired.

Q: Does this last throughout the day?

A: Yes.

Q: Are you more easily frustrated because of your lack of sleep?

A: Yes.

Q: Ok, let’s talk about after getting up from the bed and let’s take this one step at a time. So, what do you do when get out of bed in the morning.

A: I go brush my teeth.

Q: Ok, and when you brush your teeth, is it harder because of your injury?

A: Yes.

Q: How? Can you explain to me?

A: Yes, well, normally I would have two hands and I can grab the toothpaste with one hand and the toothbrush with other and squeeze the toothpaste onto the tooth brush.

Q: Ok, so now how has it changed?

A: Well now, I have only my left hand and I’m not really good with it. But, I have to uncap the toothpaste with one hand, put my toothbrush on the counter, and squeeze the toothpaste on the toothbrush. It’s not painful, but it is more difficult and time consuming.

Now do you see the difference an experienced personal injury attorney can do for an injured client versus an inexperience one? Pain and suffering doesn’t have to be just pain, it can take other forms like causing every day task to be more difficult, needing to modify the way you do things, or taking more time to do an activity. This is all part of your pain and suffering. The education goes both ways. At The Law Firm of R. Sam, we teach the injured client what pain and suffering really means, and they in turn, teach us their pain and suffering.  This is essential for us to determine what your pain and suffering is really worth.