Keeping a Pain Journal
A tool that injured parties can use to help prove their case for pain and suffering is to maintain a pain journal that records information regarding the nature, frequency and intensity of the pain you are suffering from as well as how the pain has affected the activities you typically engage in at work, at home and at play and what efforts you are taking to help reduce the pain. Here’s six (6) tips you should consider in writing a pain journal.
1. IDENTIFY WHERE IN YOUR BODY YOU ARE CURRENTLY SUFFERING FROM PAIN.
You should start your pain journal by noting the date and time of each entry followed by identifying what body part is causing you pain. Be exact in locating where the pain is located. What part of your body are you suffering from pain? If there is a bruise or a surgical site involved, you should take a picture of it to show the extent of the bruise and/or scar if applicable.
2. IDENTIFY THE TYPE OF PAIN YOU ARE SUFFERING FROM.
People suffer from different types of pain. Your pain journal should include the type of pain you are having at each location where you are suffering from pain, i.e., you should describe the nature of your pain including a description of the type of pain you are suffering from if they are located in more than one location. The description could include any or more of the following, namely:
a. Dull ache
b. Dull ache that spikes with activity such as range of motion
c. Burning pain
d. Stabbing pain
e. Pins and needles
f. Other: Please specify.
Sometimes a person may have multiple sites of pain, but different types of pain at each site. For example, a person could have a stabbing pain in the lower back but then have a dull ache that spikes with activity in the neck. Be clear and accurate as to the type of pain you are experiencing as a result of your trauma and/or condition.
3. IDENTIFY THE INTENSITY OF THE PAIN YOU ARE SUFFERING.
The intensity of pain may vary from pain site to pain site as well as during the time of day. When you are logging information about your pain, you should note the time of day you are talking about in your journal. Then you should discuss the intensity of your pain. If you are using a pain scale between 0 and 10 (0 being pain free and 10 being the worse possible pain) you should copy the scale down that you are using and put it in your journal since there are multiple 0 to pain scales out there. For example, if you say that the pain level is a level 2 or 3, a defense attorney could misrepresent what you actually meant in your journal by using a pain scale different than your own.
I suggest to my clients that they also provide a narrative description of their pain so that they can elaborate what type of pain they are having to endure. In that regard, pain could have the following categories, namely:
1. No pain or pain free;
2. Mild pain;
3. Mild to moderate pain;
4. Moderate pain;
5. Moderate to severe pain;
6. Severe pain;
7. Severe to excruciating pain; and,
8. Excruciating pain.
Pain may vary at different times of the day. That is why you should post information in your journal as to the time of day you are recording. You should note whether the pain gets worse as the day progresses or whether the pain is worse in the morning when you wake up. That’s important. When the pain is worse in the morning rather than as the day progresses, defense attorneys may argue that the pain is not trauma or accident related but rather the natural progression of pain arising from arthritis that all of us get as our age advances.
4. IDENTIFY WHETHER THE PAIN YOU ARE SUFFERING FROM IS CHRONIC PAIN OR INTERMITTENT.
After you identify where you are suffering from pain, you should talk about whether you suffer from pain all of the time. We refer to that type of pain that people experience all of the time as "chronic pain." If the pain is only occasional pain, that type of pain is typically referred to as "intermittent pain." As the day progresses, you should track the pain to show what activities you are doing which may make pain better or worse. Pain will fluctuate during the course of a day in many cases. Sometimes the pain may go down as you take pain medication (prescription and/or over-the-counter) and sometimes the pain may get worse due to having to do certain tasks at work or at home. Keeping and recording notes as to what you are doing helps make your journal "real" insofar as it actually identifies what you are going through and how you are dealing with it.
5. IDENTIFY WHAT ACTIVITIES YOU MISS OUT ON AND/OR PERFORM UNDER DURESS AS A RESULT OF PAIN.
As apart of your journal, you should include reference to what activities you typically participate in at work, at home or at play that you are missing out on as a result of your pain. The journal should also focus on activities you participate in at work, at home and at play that you engage in if you are performing them under duress. Does the activity make your pain worse or better? If so, how.
6. IDENTIFY WHAT YOU ARE DOING TO TRY TO MAKE THE PAIN GO AWAY OR GET BETTER.
The most important task you should record in your pain journal is to identify what you are doing each day to try to make the pain go away or get better. There are many people out there (potential jurors) who have an anti-plaintiff attitude. They may consider a pain journal contrived or look at the journal from the perspective that the author is nothing more than a whiner as they record information about the pain they are enduring unless for the moment the pain is obvious such as an amputation of an appendage, a scar following a surgery or a gun shot wound. Even then, the problem with the chronic pain patient lies with the juror contending that the person writing about their pain is nothing more than a whiner when the pain lasts more than 6 weeks from an event that caused the pain.
I have found that when the person writes about their pain, the most important task they should focus on (after they have written about their pain as noted above) is the measures that they are doing to make the pain go away or at least better. This helps rebut the contention that the injured person isn’t following the treatment plan of their healthcare provider or taking any measures to mitigate their pain.
We oftentimes refer to these actions as "mitigation." The law requires any and all injured parties to mitigate their damages when possible. Hence, writing about how you are attempting to conquer your pain is essential to your success in establishing your entitlement to compensation for the injuries you have incurred as a result of someone else’s responsibility. Those activities could include information about going to a healthcare provider on any given day such as an appointment with a physician, chiropractor, physical therapist, massage therapist, acupuncturist an the like. You should include what medication you are taking to address the pain. That could include either prescription and/or over-the-counter medication for pain relief, muscle relaxers and/or anti-inflammatories. You should include the time of day you take the medication, the name of the drug you take as well as dosage.
Another activity you should or "must" include in your pain journal is what exercises you are performing to help address your pain. Many doctors and physical therapists will provide their patients with a list of stretching or other exercises that you should do at least once or twice (or more) a day. Get the instruction list in writing from your healthcare provider of the exercises you should be performing and then follow them. You should designate portions of your day to perform the exercises (at work and at home) each day and document that you are doing them so that you can demonstrate that you are doing everything you can to mitigate your injuries and to get better. If pain intensifies at work or at home, make sure you record each and every measure you take to address the pain. Failure to do these stretching and other exercises and take your medication (Rx or Over-the Counter) and document them in your journal could be used by defense counsel to argue that you failed to mitigate your damages and should receive less compensation than you may be entitled to receive for your pain and suffering.
In conclusion, maintaining a pain journal is a significant means to obtain a fair settlement for the injuries and damages you have incurred as a result of the fault and responsibility of someone else.