Pain and Suffering

This is the main reason you need an attorney. This is the heart of a personal injury case of whatever kind (except workers' compensation claims where there is no pain and suffering against the employer or its insurer). As many have said wage loss and medical expense are the tip of the iceberg. The vast majority of the claim like an iceberg is below the surface of the water. Everyday activities which are given up because of pain. I used to garden, but I no longer do that. I used to pick up my grandchild, but now I can't. I no longer walk my dog, instead I bought a portable fence and let him run around a small enclosure by himself. I wake up every night with pins and needles in my arms and I can't sleep for hours after. I have a hard time concentrating at work and my employer who is trying to be understanding has passed me over for two promotions. I am embarrassed by my stooped posture because of my back pain. I feel and look terrible because I have gained 25 pounds due to not being able to exercise and having to take steroids to calm down my nerves in my neck. My husband and I no longer have sex because I am in sio much pain. These are just a few of the thousands of statements that clients have made over the many years we have been representing injured victims. This is the essence of pain and suffering.

How do we prove this. Frank P. Murphy, Esquire has taught seminars to other lawyers on how to prove pain and suffering to a jury, judge or arbitrator. It starts with personalization. Giving real life examples of the person involved. Hoefully with pictures, diaries, and witnesses who can share observations of how this person's life has changed. The first starting principle is "write it down." Keep a log, journal, diary or whatever you want to call it on how things are going, changing. If the worst pain in your life was a 10/10 when you delivered a baby, and your pain is now close to that pain insert on a calendar, log, journal, diary a notation 9/10 pain. If it is worse than the baby delivery, then write, I used to think my baby delivery was 10/10 pain, now I know it was 8/10 pain because my back pain going down my leg is a 10/10. If you are missing out on the chance to go on a trip, miss a movie, going out to dinner, then write it down.

It has been said that the human mind has the wonderful capacity of forgetting or diminishing past terrible pain. This is a survival response caused by evolution. If that were not true the human species would have died out long ago because birthing mothers would rarely want to go through that ordeal again. Just so in personal injury recall. I can't tell you how many times I have heard a client who has not kept a record be asked to recall what things he or she has suffered and the response is something olong the lines of "It really hurt a lot, I mean there was lots of stuff I could not do." Like what?" says the other lawyer to which the reply is , "You know lots of things. I couldn't do the things I liked to do." Opposing lawyer, restates, "Such as?" Finally, because you prepped your client he states some of the things he recalled over the past week since the prep meeting that he couldn't do. Imagine instead you could look at your log and see the following. "May 5 could not go to my daughter's father daughter dance because I was still in a cast with my leg elevated. I called my brother to see if he could take her, but my daughter did not want to go with anyone else." She cried but said it was ok. I tried not to cry in front of her, but my wife heard me doing so later." Now you are going to testify and have two other witnesses who can corroborate this emotional loss moment, your daughter and your wife. Imagine your diary contains a fight with your wife over money because the bills are piling up and she wants to get a second job, but your pride does not allow you to agree without a fight to let her do so. You have a reminder of the humiliation and self doubt you are going through that a year later without a reminder note you would have forgotten.

The law in Pennsylvania covering proof and awards of pain and suffering is pretty straightforward. It is up to the fact finder, i.e. Jury, judge with no jury, or arbitration panel to decide fault and if there is fault on the defendant how much pain and suffering in addition to the economic damage (wage loss, medical expense, property damage) should be awarded. Your lawyer cannot suggest an amount to a fact finder to make you fully compensated. Jurors are to use their common sense experience to value the things you have gone through for which some or all may have no frame of reference. Here are the general principles which they hear when deciding a claim for pain and suffering.

Pain and Suffering types of loss are called a non-economic loss. In other words there is no monetary agreed value for this loss. The injury suffered is peculiar to the individual and varies depending on circumstances. It is instructive for you to know the types of damages which are in this category of damages which are recoverable in Pennsylvania as well as the various factors a jury, judge or fact finder must consider in fashioning an award that fully compensates someone for the pain and suffering he/she was forced to endure.

Pennsylvania recognizes four main categories if non-economic injuries which a jury is charged to consider. Here is that charge:

• (1) the age of the plaintiff;
• (2) the severity of the injuries;
• (3) whether the injuries are temporary or permanent;
• (4) the extent to which the injuries affect the ability of the plaintiff to perform basic activities of daily living and other activities in which the plaintiff previously engaged;
• (5) the duration and nature of medical treatment;
• (6) the duration and extent of the physical pain and mental anguish that the plaintiff has experienced in the past and will experience in the future;
• (7) the health and physical condition of the plaintiff prior to the injuries; and
• (8) in the case of disfigurement, the nature of the disfigurement and the consequences for the plaintiff.