“Pain and suffering” refers to the damage elements of “physical pain” and “emotional distress” that compensate a victim of a personal injury for the trauma they suffer due to the wrongful actions of another. When an injured party prevails in a tort cause of action, they can recover monetary damages for both the physical pain they have suffered in the past and will suffer in the future due to the injury itself and the emotional distress that they have endured in the past and will endure in the future due to the harms done to them. When your personal injury lawyer asks a jury for compensation for your injury, he may ask for the jury to award these elements together or as separate elements depending upon what jurisdiction you are in and what the attorneys and/or judge decide.
What is the Physical Pain Element of Damages?
The “physical pain” element of damages is the amount of money that a jury determines will adequately and fairly compensate a person who suffers a physical injury. If there is evidence that the actual pain will endure into the future, the injured party may ask the jury to award an amount to compensate for both the past physical pain endured as well as well as the pain that he/she will endure in the future.
What is the Suffering Element of Pain and Suffering?
Suffering refers to the element of damages known as mental anguish a/k/a emotional distress. In Texas, money can only be recovered for the negligent infliction of emotional distress may only be recovered when it accompanies a physical injury. To recover for negligent infliction of mental anguish, you must prove:
- you suffered a physical injury from which the mental anguish flows,
- you experienced a high degree of mental pain and distress,
- the mental anguish is more than mere worry, anxiety, vexation, embarrassment, or anger, and;
- the mental anguish is of such a nature, duration, and severity that it causes a substantial disruption in your daily routine.
Can You Sue Someone For Saying Something Offensive to You?
Generally, no. Unless the words rise to the level of slander, they are not actionable in Texas. Slander requires that it be a false statement of fact made and heard by another person other than you. I.e. They tell a crowd that you have a transmittable incurable disease and claim it to be fact.
What If Someone Intentionally Causes Me Emotional Distress?
You can bring a claim for it, but in most cases intentional acts are excluded by insurance, so it usually does you no good to bring the claim unless the individual owns his car, home and has case over and above $60,000.00. Otherwise, the Texas Homestead Act and Federal Bankruptcy Laws make the individual judgment proof.
How Do You Ask a Jury for Pain and Suffering?
Prior to the jury deliberation, attorneys for both the Plaintiff and the Defendant will submit proposed jury questions to the Court. The court will decide which is appropriate under the facts of the case. One of those questions will address the various elements of damages the plaintiff is asking for. It usually looks like this:
What amount, if awarded now in cash, would fairly compensate the plaintiff for the following:
- Physical pain, if any, that the plaintiff has suffered in the past? ___________
- Physical pain, if any, that the plaintiff has suffered in the future? ___________
- Mental anguish, if any, that the plaintiff has suffered in the past? ___________
- Mental anguish, if any, that the plaintiff has suffered in the future? ___________
Note: Some jurisdications allow you to ask for “pain and suffering” in the same question. We do NOT recommend this. If the appellate courts decidde there was not sufficient evidence of the mental anguish, and the two are combined, they toss both out.
How Do I Calculate My Pain and Suffering?
Sorry but there is no magic formula to calculate your pain and suffering. It is unique to you and the amount awarded will depend upon the jury.
How Do You Prove Pain and Suffering?
The testimony of the plaintiff and witnesses who observed the suffering are often the primary evidenc od how bad the physical pain was and how long it lasted. Mental anguish may be established this way, but more severe enduring mental anguish typically requires some expert testimony to establish the nature and duration of the suffering if you want to keep a large award for mental anguish on appeal. Showing how it effected or altered ones life and or the need for psychological care can assist in this as well.
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