Claiming compensation after an accident or injury
When someone gets hurt, the logical conclusion is that the person responsible should pay for those injuries.
But how do you calculate the amount to be paid when it goes beyond medical bills?
How does one calculate a concept as nebulous as "pain and suffering"? How do you put a dollar amount on a hurt toe versus a broken neck? What about an injury that got better versus one that never will? What if it changed a person's life?
Being compensated for pain and suffering is usually part of an overall negligence claim against a person or a corporation. Damages are grouped into economic (out-of-pocket expenses such as medical bills, lost wages, etc.) and non-economic (intangible costs that are harder to define, like pain and suffering, mental anguish, humiliation, loss of consortium or loss of parental guidance).
So what exactly is pain and suffering?
There are technically two kinds of pain and suffering: physical and mental.
- Physical: includes the pain experienced during recovery (since rehabilitation is actually quite painful) as well as in the future (inability to perform physical activities that claimant used to enjoy, etc.).
- Mental: fear, humiliation, depression, embarrassment, anger and other emotions that result from the accident and continue afterward.
Post-Accident Journal Form
Sample accident journal/diary to help you document the effect on your daily life
Download in PDF format
These claims are difficult to determine because you cannot identify these emotions on any sort of medical scan. Many courts are leery of pain and suffering claims, because they feel it's easy to embellish that sort of lawsuit.
How does Florida treat pain and suffering claims?
Florida recognizes pain and suffering as a "general damages" claim. The state allows for an injury victim to bring forth evidence in this area and allows the claimant some flexibility.
A variety of factors are considered when calculating these damages:
- 1. Severity of the injury;
- 2. Type of medical treatment received by the claimant;
- 3. Length of recovery;
- 4. Prognosis; and
- 5. Impact of the injury on claimant's life.
Each case's fact pattern is unique and will have to be examined by the court because pain is an individual, subjective experience.
What documentation should I use to support my claim?
A claimant should use the following types of documents to bolster his or her claim for pain and suffering:
- A mental health professional's written opinion as to the claimant's state of mind and whether his pain and suffering is, in fact, sufficient for legal purposes;
- The injury victim's testimony (a recounting of a claimant's day-to-day suffering can be very impactful for a jury to hear, as it's hard to convey those experiences any other way);
- A doctor's written opinion of the victim's pain and suffering;
- Prescription history (any medications written for anxiety, depression or pain [some are prescribed off-label for depression or vice-versa]);
- Testimony from the victim's spouse or family that explain how the injured person's suffering has affected the family unit;
- Written opinions from experts concerning the victim's state of mind and how it compares to others in similar situations.
Providing objective testimony of what the claimant can no longer do versus what he or she did before the accident can be very persuasive evidence. Even something as basic as "she can't wear high-heeled shoes anymore without pain" or "he can't sleep on his back" can be impactful, because everyone on the jury can relate to those basic statements.
You may find our printable Pain Diary useful as you look to record these effects on your daily life.
In order to collect damages under Florida's statutes for pain and suffering (at least under Fl. St. 627.737, which applies to traffic accidents), the claimant must have a "permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement." If not that, then he must have suffered "[s]ignificant and permanent scarring or disfigurement." And if not that, then the claimant must have died and his estate is bringing the claim for pain and suffering on his behalf.
Pain and suffering is hard to articulate. It can devastate families and tear apart marriages. If you or a loved one is currently suffering, try looking through our resources for help and find a mental health professional you can trust. Additionally, consider speaking with a Florida attorney who can help you through this difficult process.
Resources on hiring an attorney
- Finding a qualified Florida personal injury attorney
- Choosing a personal injury attorney – interview questions
- Preparing to meet with a personal injury attorney
- When do you NOT need an attorney after an accident?
- Negotiating lawyers fees - how do accident lawyers charge? Are there any hidden costs?
See our guide Choosing a personal injury attorney.