How to Prove Pain and Suffering Damages in an Injury Case

The type of injury you suffer and the nature of your medical treatment are the two basic indicators to an insurance company of the degree of pain and suffering you have endured.


Related Ads
Get a Free Case Review from a Local Injury Lawyer
Enter Your Zip Code to Connect with a Lawyer Serving Your Area
searchbox small

The type of injury you suffer and the nature of your medical treatment are the two basic indicators to an insurance company of the degree of pain and suffering you have endured. This article discusses some additional factors you can point out to raise an insurance adjuster’s awareness of your pain and suffering caused by the accident, and offers tips on how to best document these kinds of damages.

How Medication Shows Pain and Suffering

The fact that you have been prescribed medication to relieve pain, inflammation, or any other injury symptoms may help to convince an insurance adjuster that your injuries are serious. The stronger the medication and the longer it is prescribed, the greater its influence on your settlement. This is not a very precise measure, of course. Some doctors prescribe medication much more readily than others. And some patients request medication at a certain level of pain while others don’t want it or need it. But insurance adjusters are always looking for something concrete indicating that a doctor thought an injury was painful -- and a medication prescription serves that purpose.

Length of Recovery and Pain and Suffering

To an insurance company, the longer the recovery period, the greater an injured person’s pain and suffering. The most effective way to let an insurance adjuster know how long your recovery takes is to have that fact indicated in your medical records. Sometimes that task is easy because your doctor has made a notation in your medical chart that recovery is expected to take a certain number of weeks or months, or that you should not engage in certain activities for a certain amount of time.

In many cases, however, the only way your actual recovery time makes it into your medical records is if you report your progress, or lack of it, to the doctor. Many of us get tired of going to the doctor when we know all the doctor will do is nod, write something down, tell us to come back if things don’t get better -- and then send a bill.

But going to your doctor to report on your recovery can be very important to your claim for two reasons. First, the mere fact that your records show a doctor visit four, six, or 12 weeks after an accident indicates that your injury required ongoing attention. And second, when you visit your doctor and report continuing pain, discomfort, stiffness, or immobility, that specific continuing problem will be noted in the medical records you will later send to the insurance company as part of your claim. Remarkably, an insurance adjuster will often accept your report of pain and discomfort as true if the doctor writes it down, but the adjuster may discount the very same report of pain and discomfort you make during the course of your claim if it was not reported to the doctor earlier.

Sometimes complete "recovery" from your injuries isn't possible from a medical standpoint. To understand how permanent injuries might affect your case, see our article How Long-Term Injuries Affect the Value of Your Claim.

The Proof Is Up to You

Many of the things that can establish the amount of pain and suffering you have experienced (and will continue to experience) can best be shown if you take charge of documenting them.  

  • If you have pain or discomfort and are being treated by a physician, make sure you fully report it to the physician so that it will be noted in your medical records.
  • If you believe you need medication to control your pain or discomfort, don’t be too brave, too shy, or too stubborn to ask for it.
  • If you are suffering continued pain or discomfort but do not have any further medical appointments scheduled, consider scheduling one. It makes good medical sense and will document your continued problems.
  • If your pain or discomfort is interfering with your ability to lead your normal life, write down any daily activities you are unable to do or that you are having difficulty doing because of your injuries.
  • If your injuries can be seen -- wounds, swelling, discoloration -- photograph them regularly and indicate on each photograph the date on which it was taken.

In addition to taking the steps described above, keeping a contemporaneous log or diary of everything you experience as a result of the accident -- missed work, headaches, times of depression, sleepless nights -- can be extremely helpful when you have to explain your damages to an insurance adjuster. At the time of the accident, you may feel that you could not possibly forget the details of your injuries and their effects on you. However, many people find that their memories fade quite rapidly. A diary or log can help you to combat this problem.

This article is excerpted from How to Win Your Personal Injury Claim by Attorney Joseph Matthews (Nolo).

Talk to an Injury Attorney

Start here to find personal injury attorneys near you.
HOW IT WORKS
how it works 1
Briefly tell us about your case
how it works 2
Provide your contact information
how it works 1
Choose attorneys to contact you
LA-NOLO2:LDR.1.5.0.20140409.25642