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Proving Pain and Suffering in a Negligence Case

Steven E. North & Laurence M. Deutsch


Sometimes the most significant part of a legal award is for “pain and suffering.” We all understand the concept of pain, and we all understand the word “suffering,” but the legal meaning of “pain and suffering” as a legal basis for compensation is often misunderstood by those who are not attorneys.

First, the law requires proof that the plaintiff has experienced pain and suffering “consciously.” That is, a person in a coma who is not conscious of his or her surroundings is not entitled to “pain and suffering” damages for the time they were in a coma. However, the law recognizes that a person in a compromised state, who may only be somewhat aware of his or her surroundings and body, can nonetheless experience a level of distress, which will be considered " conscious" pain-and-suffering if some degree of awareness can be established. This is why it can be critical to locate family members who can testify that they were at the patient's bedside, who can talk about reactions to painful stimulus, or if the patient squeezed a hand when asked if he or she felt pain, blinked an eye, or grimaced, etc.

When severe pain and suffering is established, it can substantially increase the settlement payment of a negligence case. Although there are powerful cases in which an injury results in immediate death or coma without any perception on the part of the injured person, most cases have an element of pain and suffering even if it is simply the sudden appreciation of catastrophe.

Sometimes, the presence of pain and suffering is obvious – burn injuries, for example, when a wound has to be scraped and debrided while the patient is conscious. There are also certain chronic conditions, such as Reflex Sympathetic Dystrophy (RSD), now known as Chronic Regional Pain Syndrome (CRPS) that are recognized as causing severe, ongoing pain even from an initially “minor” injury.

This firm successfully handled an RSD case for a plaintiff who developed the condition following the repair of an arm fracture. For years the young man was in genuine distress. Due to his CRPS, his arm became extremely sensitive and painful, forcing him to wear a sling on his arm, having to avoid even a gentle gust of wind blowing on the limb. Among other injury-related limitations, he could not even cut his fingernails because of the associated pain in his hand. His pain and suffering was so severe that he actually requested on many occasions that his arm be amputated.

A New York Times article (“The Secret Life of Pain,” August 8, 2017) presented an unusual case that illustrates how individualized the response to pain is. What one person may experience as unbearable might register on another as simply annoying, and vice versa. The article describes a 35-year-old man who suffered 10 years of debilitating back pain, which he worked hard to conceal from coworkers, not an easy task given that even walking was difficult for him. In addition to wearing various straps and braces meant keep pain in check, he stood at meetings and sat on his briefcase in an effort to muffle the constant pain.

Ultimately, he went to a rehabilitation facility where numerous tests did not reveal an objective source of his pain. The health professionals at the facility encouraged the suffering man to give up the braces and straps and employ a breathing technique that helped direct his mind away from the distress and permit a relaxation that enabled him to function in life again.

So, is it simply a matter of "mind over matter," a subjective reaction to certain stimuli that is a product of one's own predilections? If so how does that play out in a personal injury case?

The answer is that there are a combination of factors that come into play in determining what pain is real and compensable and what complaint of pain is a product of emotional factors that cannot be chargeable against the person who caused the primary injury. These include the:

  • Objective medical evidence on cause of an injury, and likely source of pain
  • Consistency of the complaints as reflected in various medical records
  • Sensitivity of the jury
  • Appreciation of the defense claims examiner
  • Overall impression made by the plaintiff
  • Lifestyle and activities in which the plaintiff engage

The bottom line is that the medical facts will predominate in determining whether there is a compensable claim for conscious pain and suffering. However, the ability to properly and fully present these injuries calls on an attorney’s experience and understanding of all the factors involved in how these cases will ultimately be evaluated by an opposing claims examiner, or by the jury.