Measuring Pain and Suffering
It doesn’t take an attorney to know that pain and suffering go beyond an initial physical injury. Mental pain and suffering often ranges from lack of sleep or energy to humiliation, hypervigilance, consuming anger, mood swings, sexual dysfunction, and even PTSD (Post-Traumatic Stress Disorder). In a nutshell, an accident or injury can impact someone’s enjoyment of life. Plaintiff attorneys must quantify not only the physical and mental pain and discomfort a client has already experienced, but also what an expert can reasonably predict in the future.
A comparatively minor accident has far-reaching ramifications of which a judge or jury may not conceive. A pedestrian with the right-of-way can be hit in the crosswalk by a car, but ultimately walk out of an emergency room without broken bones or significant physical trauma. But a diagnosis of soft tissue damage doesn’t spell out that the person has been unable to sit without pain for a year. It doesn’t convey that he or she experienced nightmares for weeks, feared crossing streets for months, or was unproductive due to physical pain and an erratic sleeping pattern.
Even if a victim’s livelihood doesn’t involve significant physical labor, pain and discomfort find their way into a daily work life. Moving around with pain in what seems like an undemanding job can slow a person down. A part-time administrative professional can be laid off for cutting hours back to attend physical therapy…and be forced to hunt for a new job in between doctor’s appointments and pain that doesn’t follow a schedule.
For that hypothetical pedestrian, consequences like these were caused by the defendant. That pedestrian is entitled to compensation for all of the consequences – particularly, the mental or financial effects that remain long after the bones have healed and the bruises have disappeared. The law even recognizes mental pain and suffering of a less catastrophic nature – such as being unhappy about missing a family wedding because of post-incident physical limitations or pain. But the less obvious the effects, the greater the onus on the plaintiff to prove that the amount of damages sought are reasonable.
There are palpable odds stacked against anyone who seeks legal relief for pain and suffering. Negligence claims require a solid establishment of causation between the defendant’s actions and the negative effects on a plaintiff’s life. Plaintiff attorneys should establish that the client took reasonable steps to minimize or mitigate damages done, including seeking medical attention in a timely manner. Compensation can be reduced if he or she can even be considered partially responsible for an accident. Even a legitimate delay in diagnosis or treatment can hurt a case.
Along with the letter of the law, plaintiffs are up against juries with limited, subjective knowledge. In general, juries are not offered concrete guidelines for quantifying the value of pain and suffering. Mostly they use their common sense and personal background – which is highly variable and colored by personal opinions.
And like members of a jury, plaintiffs come out of the general population. A witness with limited communication skills may not be able to fully and accurately convey the mental or physical effects. It is also challenging to measure the pain and suffering of an accident victim who is not alive to testify on his or her own behalf. A plaintiff’s likeability and credibility can sway jury opinions.
The litigious society we live in makes it all the more important for a professional with a specific skill set to review and explain the physical and mental repercussions of an incident. Plaintiffs need as much solid evidence as possible to counteract a jury’s skepticism. And yet an endless string of witnesses and extensive medical records can overwhelm and confuse a jury more than edify them.
Documenting Pain And Suffering
That’s why it behooves a plaintiff to request a separate pain and suffering report. Also known as a FRE 1006 summary witness report, this is a special request that can be completed by a legal nurse consultant (LNC). Evaluating non-economic, non-concrete damages takes special expertise that someone with both legal and medical acumen can offer. An LNC can review complex, extensive medical records and summarize pain and suffering in ways that laypeople in a jury box can relate.
On one hand, this report humanizes the suffering victim in a way that a diagnosis can’t translate. On the other hand, a clearly detailed report in clinical terms can document how the subject’s life has changed as a result of someone else’s mistake.
At the end of the day, in fact, pain and suffering is often a repercussion of someone else’s poor decisions. By treating it with the same consideration as high blood pressure, for example, a plaintiff’s legal team can move closer to achieving a fair and reasonable settlement for a client.
ALN Consulting is a national provider of medical-legal consulting services, founded in 2002. Our expertise includes, yet is not limited to, medical malpractice, long-term care, product liability, class action/mass litigation, and toxic tort. Contact Us to put our legal nurse consulting experts on your case.