PROVING PAIN AND SUFFERING
One of the greatest challenges that faces an injured party is trying to prove pain and suffering. There are a number of potential jurors today that are skeptical of awarding an injured party money for pain. Yet, pain is a very real problem that every injured party suffers notwithstanding the difference that exists in the type and intensity of pain as well as whether the pain is chronic (meaning all the time) or intermittent (meaning just on occasion). Many jurors are not persuaded in rendering a verdict on behalf of an injured party for the pain they have suffered merely based upon the testimony of the plaintiff as to the type and intensity of the pain the plaintiff incurred arising from an injury.
Here’s six (6) tips from an experienced trial lawyer that can help you prove pain and suffering if you incur an injury due to no fault of your own, namely:July 24, 2016
1. Get the Medical Care and Treatment You Need;
2 Follow Your Physician’s Treatment Plan to the Letter;
3. Maintain a Pain Journal;
4 Prepare an Activity List;
5. Prepare a Before and After Witness List; and,
6. Get Work Restrictions from your Doctor.
1. GET MEDICAL TREATMENT AND THERAPY YOU NEED!
During the past 34 years that I have been a trial lawyer, I have found that there are a number of people who don’t believe that people should be awarded compensation for pain and suffering based solely on the testimony rendered by an injured party concerning the pain they have been called upon to endure. Putting aside the question of compensation for the moment, the law requires each and every plaintiff to "mitigate" their injuries and damages if they are given the opportunity to do so. Mitigation requires the plaintiff to do whatever the plaintiff can reasonably perform in order to reduce their damages. So getting proper medical treatment and therapy is one of the things an injured party needs to do in order to mitigate their damages.
The first step in getting better following an injury is to get a proper diagnosis from a healthcare provider and then follow up with reasonable medical treatment and therapy. When injured parties fail to get proper treatment and therapy, it leaves the door open to a defense attorney to argue that the claim for pain and suffering is insignificant since any reasonable person suffering from pain would seek and obtain medical care to treat the injury.
Once you obtain a proper diagnosis from a healthcare provider, it’s important to follow through with treatment and therapy to help you get better. When an ambulance is called to the scene of a collision, the paramedics responding to the scene of the accident typically document their observations by making a chart note regarding what they see and hear at the scene of the collision and during the transport of their patient to the hospital. The chart notes that the paramedics write typically document the type of pain the patient is complaining about as well as the level of the intensity of the pain and what measures, if any, the paramedics rendered to the patient to help address the pain. The chart note can be helpful in demonstrating to a jury that indeed the plaintiff incurred pain and suffering as a result of an injury.
At the hospital, the patient is evaluated by an emergency room physician. Depending on the preliminary diagnosis made by the ER doctor, radiological studies such as x-rays, MRIs and CT scans are often obtained to help the physician make a proper diagnosis and to help the medical provider recommend a course of treatment. They can also assist the ER doctor in making a referral to you to see another specialist in the field of neurosurgery, orthopedics and/or physiatry to treat your condition causing you to suffer from pain. The ER doctor will also determine whether or not you should be treated and released or otherwise admitted as a patient to the hospital.
If a person is admitted for an extended stay at the hospital, nurses and certified nurse assistants (CNAs) will document in the chart what they see and hear in reference to a patient’s pain. After the patient is released from the hospital, a patient should seek follow up treatment and therapy by any number of healthcare professionals depending on the diagnosis rendered by the ER physician and/or radiologist including, but not limited to, neurosurgeons, orthopedic surgeons, physiatrists, osteopaths, neurologists, chiropractors, physical therapists and acupuncturists.
I have found that when people claim that they are injured but fail to get the proper medical attention they need in order to get better that defense attorneys will argue during a trial that the plaintiff either failed to sustain a serious injury or the plaintiff failed to take proper measures in taking personal responsibility in obtaining the treatment and therapy they needed in order to get better in the hopes of reducing whatever compensation a jury might award an injured party for their pain.
Some connective tissue injuries can take up to 72 hours to manifest in the form of pain and, hence, getting a proper diagnosis is the first step to getting proper treatment and therapy to address your pain and get you back on the road to health. Many people may leave the scene of a collision feeling no pain only to go home and end up developing pain thereafter. When that occurs it is important to take the initiative and go to the hospital for an evaluation.
Failure to get the proper medical care you need will only delay you from getting a proper diagnosis necessary for you to get the medical treatment and therapy you need to get better. Furthermore, failure to get medical treatment will arm the defense with the illusion that you are not suffering any pain, significant or otherwise. Hence, getting an evaluation at a local trauma center is one of the first steps to proving your right to an award for pain and suffering.
Getting to a trauma center following any accident is a good idea to make sure that you are properly taken care of and if you need a referral to an orthopedic surgeon or neurosurgeon or other pain doctor, a proper referral can be made.
Some defense attorneys distort facts to a jury at trial. When plaintiffs fail to get treatment including having the paramedics evaluate and transport a patient to the hospital and/or taking the initiative to going to the emergency room to be evaluated by a physician, some defense attorneys contend that such facts demonstrate the lack of a significant injury. Therefore, you should take the opportunity in every case to get checked out as soon as you start feeling any pain or discomfort arising from an injury. If you are pain free at the scene of a collision but pain develops later in the day or evening or the following day or so, you should go to your local trauma center for an evaluation. While in the ER, a physician can prescribe medication for you to address your pain including, but not limited to, pain relievers, muscle relaxers and/or anti-inflammatories.
July 24, 2016When seeking damages for pain and suffering, being transported and/or going to the hospital can help you not only in getting a proper diagnosis and start you on the path of healing from your injury but also help you document the type of pain you have but also the level of intensity of your pain.
After you have been evaluated and released by the emergency room physician, it is imperative that you follow up with a physician to obtain a treatment plan.
2. FOLLOW YOUR PHYSICIAN’S TREATMENT PLAN TO THE LETTER!
I have seen a number of defense attorneys prepare exhibits at trial to demonstrate that the injured party’s claim concerning pain were exaggerated or otherwise insignificant including timetables or calendars that document the dates the injured party sought treatment or "no show appointments. A "no show" appointment is where the injured party missed a scheduled appointment with a healthcare provider. When injured parties miss n appointments or have a pattern of missing scheduled appointments, defense attorneys will argue that the "evidence" suggests that the plaintiff’s claim for pain and suffering is disingenuous or that the pain is actually insignificant. Defense attorneys will argue "just how badly could the plaintiff be hurting when they choose for themselves NOT to go to their medical appointment or therapy!" After all, any reasonable person suffering from pain would jump at the chance to see a physician, therapist or other healthcare provider to get the treatment they needed in order to get better. The fact that the plaintiff was a "no show" demonstrates that either the plaintiff isn’t hurting as bad as the plaintiff contends or the care provided isn’t doing the plaintiff any good, and, therefore, the care provided by the healthcare provider was not medically necessary or reasonably incurred.
Following the treatment plan of your physician and/or physical therapist is essential in helping you get better from a health perspective, but it also is essential in proving to the jury that you should receive compensation for your pain and suffering. By following your physician’s treatment plan and therapy, you demonstrate to the jury that you are worthy of an award for pain and suffering. By following the treatment plan of your physician and physical therapist to the letter, you demonstrate to the jury that you are not only suffering from pain, but that you are doing everything you can to mitigate your damages to the best of our ability.
Following your physician’s treatment plan to the letter is essential to convincing a jury that you are assuming personal responsibility for your injuries by doing everything within your power to overcome the injuries and damages that were inflicted upon you due to no fault of your own.
Therefore, follow your physician’s treatment plan to the letter!
3. MAINTAIN A PAIN JOURNAL
In order to help your attorney prove that your are suffering from pain as a result of the defendant’s negligence or responsibility, it’s helpful to maintain a pain journal. A pain journal should not only address the type of pain that you have but also set forth the level or intensity of pain, how often you have the pain, and what you are doing to deal with the pain, i.e., what are you doing to reduce or relieve the pain. It takes more than just testifying at trial that you are having pain in order to convince a jury that you are entitled to payment for the pain. You need to show to the jury what you are doing in your journal to reduce the pain you are suffering from to demonstrate that you are worthy of the very award you seek. Those who simply complain about their pain and do nothing about it are typically disappointed by a jury verdict that considers the pain to be insignificant.
4. PREPARE AN ACTIVITY LIST
In order to win your case for pain and suffering, it is crucial for you to demonstrate to the jury that your pain and suffering has affected your quality of life and capacity to enjoy life. Making a list of activities you participated in before and after incurring an injury can go a long way in meeting your burden of proof.
There are three types of activities we engage in, namely: (1) Vocational; (2) Avocational; and (3) Activities of Daily Living (ADLs). In other words, you make a list of activities for your lawyer that you performed at work and at home on a daily basis that have been effected by your injury as well as any avocational or recreational activities that your are now unable to do or do under duress as a result of your pain. After you prepare the activity list, then it is helpful to tell your lawyer of the people you know who could render testimony and evidence about their observations concerning your inability to participate in those activities.
5. MAKE A LIST OF BEFORE AND AFTER WITNESSES
It’s one thing to complain on your own about your own pain. It is, however, far more effective to have others testify about their observations and stories they have about you before and after you incurred the injury which are far more effective that you just testifying about them. Many jurors look at an injured party and label them a "whiner" when they talk about their injuries and how the pain has affected them in their vocational, avocation and activities of daily living. However, it is far more effective to have other people render testimony on your behalf regarding their observations concerning your "before and after" condition. We refer to these folks as "before and after witnesses." They can include people who are friends, family, supervisors and associates at work and any other people whom you may know who may be able to render testimony about your condition before and after the accident. Having before and after witnesses testify on your behalf regarding your condition reduces significantly the conclusion by a number of jurors that you are a "whiner" in talking about your injuries and how your pain as affected our quality of life.
6. HAVE YOUR PHYSICIAN PROVIDE YOU WITH AN ACCURATE LIST OF WORK RESTRICTIONS TO AVOID AGGRAVATING YOUR INJURIES
When you are injured, it’s helpful to have your physician provide you in writing with a list of restrictions that you should avoid at work or play that could aggravate your injuries or delay your healing process. Such limitations could include how much and how often you should be lifting any objects of weight and any other activities such as climbing up and down ladders or steps and/or any work restrictions regarding bending, stooping, kneeling or generally standing or sitting for periods of time.
When plaintiffs go to trial and fail to present any testimony or evidence regarding work restrictions, a defense attorney will likely argue that your pain and suffering is insignificant, because if you incurred a serious injury, the doctor would have given you a set of work restrictions to help you deal with your pain while you are at work, home or at play.
In conclusion, "people don’t believe it if they see it; they see it only if they believe it." Give the presence of various anti-plaintiff biases or beliefs the use of the aforesaid 6 tips can help you overcome adverse jury bias and convince them that the pain you have had to deal with is real and that you are worthy of a significant award for the pain that you have had to deal with due to no fault of your own.
If you or a loved one have been injured due to no fault of your own as a result of someone else's responsibility, you should contact an experienced trial lawyer for a free consultation to discuss your legal rights and remedies. Boise Trial Lawyer Alan Morton has over 34 years of experience helping victims of personal injury better understand their right. You can reach Mr. Morton by 208.344.5555 or toll free at 800.716.8021 or by completing an online contact form.