Compensation for Pain and Suffering | Shapiro, Washburn & Sharp

March 19, 2021

Blog, Virginia Personal Injury

Physical pain, mental trauma and emotional distress inevitably follow from bodily injuries. This is why victims of accidents caused by the negligence or recklessness of other parties have the legal right to claim compensation for pain and suffering.

This right exists regardless of whether an avoidable and preventable injury resulted from a car crash, truck accident, medical or surgical error, slip and fall, or product defect. The right exists in Virginia and North Carolina, where the personal injury and wrongful death attorneys with our law firm take most of their cases. And the right has been recognized since common law came into being long before any statutes were written out in language even lawyers can have trouble interpreting.

Recovering compensation for pain and suffering is not always easy, however. Insurance claims adjusters, defense lawyers and, sometimes, jury members will question the reality of emotional injuries and mental scars they cannot see. Even when pain and suffering is acknowledged, determining how much compensation is owed presents a significant challenge. What price can anyone put on, for instance, new or worsened symptoms of depression?

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Recognizing the need for and calculating fair amounts for compensating a personal injury victim for economic damages are fairly straightforward processes. X-rays and other medical images show broken bones, herniated discs and the like. Adding up hospital bills and prescription drug costs is simple. Well-recognized methods exist for estimating the income a person lost while recovering and for figuring out how much a permanent disability will lower lifetime earnings for an accident victim.

So, What Are Pain and Suffering in the Context of a Personal Injury Case?

The technical term is noneconomic damages because, unlike the economic damages described in the preceding paragraph, no one can assign a precise dollar figure to pain and suffering. As the online dictionary maintained by the Legal Information Institute at Cornell Law School explains, these are

The physical or emotional distress resulting from an injury. Though the concept is somewhat abstract, the injured person (the plaintiff) can seek compensation in the form of cold, hard cash. How much the defendant owes for pain and suffering is calculated separately from the amount owing for more direct expenses, such as medical bills or time lost from work—although sometimes these amounts are considered to arrive at a logical figure.

The last sentence means that noneconomic damages are often calculated as either a percentage of or a multiple of the economic damages. An economic damages award for a relatively minor injury might come with a noneconomic damages award that represents 50 percent of what is needed to pay medical expenses. On the other hand, a severe injury that leaves the victim paralyzed and unable to ever return to work might merit a noneconomic damages award that is twice or three times the award for economic damages.

Each case will be different, but an experienced and caring personal injury lawyer will fight to obtain all the compensation their client is owed. Evidence to substantiate pain and suffering can include testimony from the accident victim, statements and reports from health care providers and mental health experts, and testimony from family members, friends and coworkers.

What Counts as Pain and Suffering That Merits the Payment of Noneconomic Damages?

A very far from exhaustive list of new or worsened mental and emotional problems that fall under the legal umbrella of pain and suffering includes

  • Anxiety;
  • Depression;
  • Insomnia.
  • Fearfulness and phobias, particularly when these only developed after the injury;
  • Mood swings, and
  • Negative or harmful behavioral changes, especially in children.

Permanent scarring and disfigurement, such as the loss of a limb or an eye, are also treated as injury-related problems that merit the award of noneconomic damages in personal injury cases.

EJL