How is Pain and Suffering Determined in a Car or Truck Accident Case?

Damages for pain and suffering in a car or truck  accident case frequently constitute a substantial portion of the damages sought from a jury.  Unlike lost wages, which usually can be easily determined, pain and suffering cannot be easily quantified.

What Constitutes Pain and Suffering?

Pain and suffering includes a number of aspects, including:

  • The physical pain incurred at the time of the accident
  • Ongoing pain from the injuries sustained, which in severe cases, may be life-long
  • The physical pain from surgeries, other medical treatment, and rehabilitation
  • Mental suffering and anguish that arise from the awareness of physical pain, as well as the ongoing mental suffering that may result from the impact that injuries may have on a person’s life
  • In some cases, fear of death, and/or the ongoing fears arising directly from the accident (such as nightmares or anxiety in related circumstances)

As a Madison car accident lawyer, part of my job is to carefully document all of the injuries that you or your family member may have suffered, so that jurors can consider all damage aspects.

Factors Commonly Considered by Juries in Calculating Pain and Suffering Damages

There are several factors that a jury may take into consideration when awarding damages for pain and suffering.  These include:

  • The nature of the injury,
  • The length of time of the injured party’s suffering, including whether the injury may be permanent
  • The degree of consciousness,
  • The amount of scarring, and
  • The injured party’s age, health, habits, and pursuits.

There are other factors that jurors may consider when determining pain and suffering.  In general, with respect to pain and suffering, it is the role of the jury to determine what they believe is fair compensation given the nature of the suffering sustained.

The Burden of Proof for Pain and Suffering Damages

The injured person has the burden of proving to jurors to a reasonable certainty the nature and degree of the pain and suffering incurred.  Proof of pain and suffering may be offered through lay testimony (the injured party giving testimony as to his or her own pain and suffering), expert testimony (medical experts), demonstrative evidence (photographs/videotapes), and documentary evidence (medical records).

Objective and Subjective Complaints

Wisconsin courts have distinguished the type of proof necessary for subjective and objective complaints in claims for pain and suffering.  A subjective complaint of pain is one that cannot be founded upon observation.  In other words, an injured person may complain of a headache or backache, which cannot be proven or supported by medical evidence.  Nonetheless, the pain may be very real.

On the other hand, an objective complaint is a symptom accompanied by signs that tend to confirm the patient’s physical complaint and enable the examining physician, nurse, or other health care provider to deduce the cause.  Objective complaints of pain and suffering most often require the testimony of a qualified expert. 

Past and present pain and suffering does not require medical testimony when the injuries are subjective in nature.    Wisconsin courts, however, do require expert opinion testimony to prove that the injured party will experience future pain and suffering when the injuries are subjective in nature.

Proving Your Case

Whether an injured person will receive full value of his or her bodily injury claim often hinges on the proof of pain and suffering offered, and convincing jurors of the extent that such pain has occurred at trial.  In cases in which severe pain and suffering has occurred, it’s one thing for the injured person to describe his or her pain and suffering to a jury.  It’s another thing for this testimony to be supported by video showing what the person must go through in terms of rehabilitation and lifestyle changes, as well as testimony from family members and medical staff who can offer insight into the amount of pain and suffering likely endured.

By presenting a complete picture through additional testimony and video, jurors will often have insight into the full degree of pain and suffering, which will help them better determine fair compensation for such injuries.