After you’re in an accident, you have a lot to deal with, and the last thing you probably want to worry about is learning how to prove your case in court. Instead, you’re probably worried about property damage, potentially urgent medical care, follow-up doctor’s visits, and more.
Maybe you can no longer work and must deal with the stress of your inability to provide for yourself and your family. And while you’re trying to recover physically, you may be suffering just as much—if not more—mentally and emotionally, in ways that are much harder to define.
While car damage and medical costs are relatively straightforward to prove in a legal case, damages for pain and suffering are more difficult to measure. Your experience is subjective, and no universal standard can measure a person’s pain. You need an experienced accident attorney by your side to establish the damages you deserve and fight to prove your pain and suffering.
You also deserve fair compensation for your injuries, but focusing on a lengthy and complicated legal case is something you shouldn’t have to fret over. A qualified accident attorney will help you investigate the accident and fault of the negligent party, assess the damages you deserve, and enable you to arrive at a fair settlement agreement or win in court.
What Constitutes Pain and Suffering in a Personal Injury Case?
In any personal injury case, such as a car accident, you can recover different damages, assuming you successfully prove the legal elements of your claim or lawsuit.
While every case is unique based on the facts and circumstances, some common categories of recoverable damages include:
- Past and future medical expenses;
- Past and future lost wages;
- Impairment of earning capacity;
- Reduced enjoyment of life; and
- Past and future pain and suffering.
Some of these damages are easily quantifiable (like medical expenses, lost wages, and lost earning capacity) and are often called economic damages. To prove your eligibility for medical expenses, you can submit copies of your medical treatment records, doctor reports, and medical bills to the insurance company. You may also need a qualified medical provider to causally connect your injuries to the accident.
To prove your eligibility for lost wages, you can usually submit copies of various records from your employer showing the dates you missed from work and the amount of money you lost. You may also need to submit out-of-work slips from your medical provider, who authorized you to remain off work for some time following your accident.
Others are harder to estimate (like reduced enjoyment of life and pain and suffering), often called non-economic damages.
Accidents usually cause physical pain and discomfort, and the physical injuries and trauma of the event often also lead to mental pain and suffering. “Pain and suffering” is a legal term that refers to the physical and emotional distress caused by an injury and is often an important part of a personal injury case.
Physical Pain and Suffering
Pain can be both physical and emotional. Physical injuries from an accident due to someone else’s negligence can be hurt terribly: annoying, nagging, sharp, dull, throbbing, stinging, aching, etc. It can constantly afflict you or come and go. And, if severe, it can take away an accident victim’s ability to function in regular activities of daily living at work and home.
Pain and suffering can also prevent accident victims from spending time with friends and family members—and from partaking in the recreational and social activities they once enjoyed.
Examples of physical injuries that can lead to physical pain and suffering compensation include:
- Back pain;
- Severe and/or frequent headaches, including serious migraines;
- Neck pain;
- Traumatic brain injury, including painful concussion symptoms;
- Nerve damage;
- Broken or fractured bones;
- Dislocated joints;
- Internal organ damage;
- Burn injuries; and
- Spinal cord injuries/paralysis.
Mental and Emotional Pain and Suffering
Mental pain or emotional distress is known as “mental anguish” under Florida law. It occurs when someone else’s negligent actions result in mental harm.
Mental anguish can include:
- Post-traumatic stress disorder (PTSD);
- Insomnia/sleep disturbances;
- Inability to focus;
- Cognitive changes;
- Loss/diminishment of your quality of life;
- Mood swings;
- Lack of energy; and
- Lack of appetite.
Mental pain and suffering is any negative emotion a victim might suffer because of the physical pain and trauma of the accident. It includes the effects immediately surrounding the accident and those that a victim will likely continue to suffer. Moreover, mental anguish can emerge even if the victim did not suffer a physical injury. This happens in cases of negligent or intentional infliction of emotional distress. However, pain and suffering is easier to prove when a physical injury results in a permanent loss of function, high medical bills, and injuries doctors can verify with diagnostic tests.
Post-Traumatic Stress Disorder
PTSD is a common example of pain and suffering. PTSD is a serious psychological condition that often occurs after a traumatic event, like a car accident. Traumatic events usually involve the threat of death, actual or serious injury to the victim or the threat of death or physical injury to someone else.
The symptoms of PTSD after an accident can include:
- Intrusive and troubling thoughts about the accident;
- Disturbing dreams about the accident;
- Avoiding anything related to the accident, including a reluctance to drive or staying away from the accident scene;
- Experiencing a numbing of emotional responses, including feeling fewer emotions or feeling detached from your emotions; and
- Feeling increased physical sensations, such as irritability, tension, anxiety, and inability to sleep.
While many accident survivors have an emotional reaction to the accident, PTSD is a more extreme condition than feelings of sadness or stress. It is not only emotionally difficult; PTSD can also be physically debilitating. It can affect your ability to perform your job functions and everyday tasks.
Individuals who suffer PTSD following a serious car crash may require extensive treatment. In addition to following up with their primary care doctor, they might need to attend counseling sessions or treatment with a psychiatrist or psychologist for their PTSD symptoms.
How Are Pain and Suffering Damages Measured in Personal Injury Cases?
If an accident injured you in Florida, you need a lawyer who knows how courts handle pain and suffering damages. In a personal injury case in Florida, a victim can recover damages that result from a bodily injury they sustained and any resulting pain and suffering due to disability or physical impairment, disfigurement, mental anguish, inconvenience, or loss of enjoyment of life experienced in the past or the future.
This is financial compensation for what the victim has endured that they would not have suffered had it not been for the accident. To recover these damages, the victim must prove they suffered and/or will likely suffer the harm.
Unlike easily quantified damages like medical expenses or lost wages, pain and suffering is harder to put a price on. This is because they are difficult to measure, as each victim’s experience is subjective, and there is no one way to calculate them. Florida courts instruct juries to decide on a fair and just amount in light of the evidence.
Some of these may include:
- The severity of the injury.
- The potential for long-term consequences.
- The victim’s age.
- Whether the victim had preexisting conditions.
- The economic losses the victim suffered (which include medical bills and lost wages).
How Do I Prove Pain and Suffering Damages in My Case?
Proving pain and suffering can be incredibly challenging, and you need an experienced lawyer to help. Because pain and suffering is subjective, the best way to prove your damages is to objectively compare what you can do after your injury versus before.
Extensively document your comparisons.
As you document the changes, note:
- The types of physical and recreational activities you participated in before the injury and how they suffered harm from the accident. Do you still engage in the same activities now but with pain, or do you now have to avoid them completely?
- How your work life or career has changed since the injury. Can you still perform the physical requirements of your former job? Were your hours or opportunities for overtime reduced? Did your responsibilities change? Were you denied a promotion? Were you forced to retire?
- How your interactions with people at work, such as colleagues and clients, have changed.
- How the injury has affected your relationships with friends and family.
- How you have been affected emotionally since the injury. For example:
- If you experience fear, depression, anxiety, or other emotional distress;
- If you have difficulty sleeping;
- If you have emotional outbursts;
- If you need to take medication;
- If you avoid activities you once enjoyed; and/or
- If you feel disconnected from friends and family.
The more evidence you provide, the more the detrimental effects of pain and suffering on your life will become clear.
While pain and suffering is subjective, objective evidence can prove it through:
- Detailed medical records, including diagnostic tests and notes. These should include your diagnosis and your doctor’s opinion on the severity of your injury, whether you will have a permanent disability, and future medical care that you’ll need. A medical provider may be willing to state, to a reasonable degree of medical certainty, that you suffered a permanent injury in your accident. Additionally, keep records of treatment by a mental health professional. Similarly, a mental health professional can state—at a deposition or in court—that you are experiencing mental distress as a direct and proximate result of your accident.
- Photographic evidenceof property damage and your physical injuries. Given that we currently live in a visual age, photographs of serious injuries and property damage can go a long way when it comes time to prove your entitlement to pain and suffering damages. Generally speaking, insurance company adjusters and trial jurors connect extensive property damage with severe injuries. Also, in their minds, severe injuries translate into significant medical treatment, pain, suffering, and inconvenience. When an accident victim introduces these photographs into evidence at a jury trial, the jury is more likely to award the accident victim higher compensation for their physical pain and suffering than if this evidence was not available.
- Before and after videos displaying the change in your activity levels.
- Social media posts.
- Texts/emails to friends and family.
- Testimony of friends, family, and co-workers regarding how the injury has negatively impacted your life and relationships. Generally, testimony from friends, church members, social group members, and co-workers about your complaints, pain levels, and activity levels before and after the accident is especially probative. That’s because these individuals do not have a direct monetary interest in the outcome of your personal injury case.
- Evidence of lost work time or reduced ability to perform your job.
- Expert testimony regarding your suffering.
Your attorney can assemble and coordinate all the necessary evidence so that you can focus on your recovery.
Filing a Personal Injury Claim or Lawsuit for Monetary Damages
An experienced personal injury attorney can help you file a claim with the appropriate insurance company for damages. In a Florida car accident claim, you must first turn to your own insurance company for compensation. This is because Florida drivers must carry required PIP insurance to compensate them for their medical bills and lost wages.
However, in many instances, an accident victim’s medical treatment costs far exceed their PIP coverage. In addition, the accident victim may suffer a serious or permanent injury in their accident, necessitating that they file a claim with the at-fault driver’s insurer.
In either instance, the claims-filing process begins when the accident victim’s attorney submits a settlement demand package and a demand letter to the appropriate adjuster. A demand package includes copies of the accident victim’s medical treatment records, medical bills, lost earning statements, photographs of injuries, property damage photographs, and a victim impact statement.
In addition to a settlement demand package, the accident victim’s lawyer will typically submit a demand letter to the adjuster. The demand letter makes a monetary demand for a personal injury settlement—within the applicable insurance policy coverage limits.
Once the adjuster receives all these documents, they will review them thoroughly and decide whether to accept fault for the accident. If the insurance company accepts liability, they may begin settlement negotiations with the accident victim’s lawyer.
The settlement negotiation process is usually a back-and-forth process, where the accident victim’s lawyer gradually lowers their settlement demand, and the adjuster gradually increases their settlement offer. The negotiation process continues until the parties either reach an impasse or settle their case. If the parties cannot agree on an appropriate settlement number, the accident victim’s attorney can file a lawsuit in the Florida state court system and pursue a favorable case result.
Once the case is in litigation, the parties may continue their settlement negotiations. If the parties settle their case, the accident victim’s lawyer will file a dismissal, and the case will no longer proceed in the court system. Otherwise, the parties will engage in discovery, during which time they answer written questions called interrogatories.
The accident victim may also testify at a discovery deposition, which the defense attorney conducts. During a deposition, the defense attorney may ask the accident victim questions about the accident, how it occurred, their injuries, and their ongoing symptoms. After a deposition, some insurance companies will offer additional monetary compensation, including pain and suffering damages, to settle the case. However, if the case does not settle, litigation will continue.
Suppose the parties cannot resolve their case amicably. In that case, the case will go to a jury trial, and the jury will decide what compensation to award the accident victim for their medical expenses, lost wages, pain, suffering, and inconvenience. In some instances, the parties may consider alternative dispute resolution options, like binding arbitration or mediation, which allow the parties to resolve their case outside the presence of a jury. Our experienced legal team can help you decide whether you should accept a pending insurance company offer or litigate your case in court.
Does Florida Have Limits on Pain and Suffering Damages?
In general, Florida does not have a cap on damages for pain and suffering. Florida statutes formerly put a $500,000 cap on non-economic damages in medical malpractice cases (and a $1 million cap in medical malpractice cases that result in a permanent vegetative state or death).
However, the Florida Supreme Court struck down those caps as unconstitutional because they unfairly harmed those whom doctors’ mistakes most severely injured. Thus, if medical malpractice injured you, this arbitrary statutory cap no longer limits your recovery.
There is a cap on punitive damages, which are separate from non-economic pain and suffering damages. Punitive damages punish or deter the at-fault party’s dangerous behavior. By imposing punitive damages award against the at-fault driver, a jury attempts to dissuade other drivers from driving negligently or recklessly in the future. Therefore, if, for example, the other driver who caused your accident was drinking while driving or under the influence of drugs, you might be entitled to seek punitive damages.
Under Florida law, you can receive three times the amount of other damages you recover or $500,000 in punitive damages, whichever is greater. Your accident injury attorney will help you investigate whether the other party was engaging in a dangerous activity that may warrant seeking punitive damages in addition to economic and non-economic damages.
If necessary, during the investigation stage of your case, your lawyer can retain an expert accident reconstructionist. The reconstructionist can then review police reports, eyewitness statements, photographs, and other evidence, to piece together exactly how the accident occurred—and who ultimately caused it.
The Statute of Limitations
You have a limited time to bring a civil lawsuit against the party who caused your injury. Under Florida Statutes Section 95.11(3)(a), you must file your claim within four years of your accident. If an accident resulted in the death of a loved one, you must file your claim within two years of the incident giving rise to a wrongful death claim. Consult an attorney as soon as possible to promptly file your claim, or you can never seek a recovery.
Contact an Experienced Personal Injury Attorney Now
An accident often results in substantial physical, mental, financial, and emotional burdens on both you and your family. Accidents can be complex, and insurance companies will push for you to settle quickly. To protect your right to recovery, you must need an experienced accident attorney on your side. An attorney will keep you informed each step of the way as we devise a strategy for your case, investigate and gather evidence, and work with experts to document and establish the full extent of your damages. Contact us today to receive your consultation.