The Hidden Damages in Personal Injury Claims

November 16, 2020 | Personal Injury

By: Joseph R. Ferretti, Attorney, Manchin Ferretti

In lecturing to other attorneys or discussing potential claims with a prospective client I often hear how those who wish to pursue a personal injury claim are afraid of a stigma attached to those who are injured and desire compensation.  More often than not the prospective client will express that they are not “the suing type” or that they never imagined talking to a lawyer about making a claim.  In the professional circle, we attorneys often complain about how in the media and in political discussions our clients are vilified for hiring a lawyer to pursue money.

Often, the subject of derision is the element of damages defined as “pain and suffering”.  Because it is difficult to think of these kinds of damages in terms of dollars and cents, they are held in low regard, often the subject of joking and scorn.  Many articles and lectures have been developed over the years to advise attorneys on how to approach insurance companies in settlement talks and how to speak to juries at trial about the client’s experience with “pain and suffering”.  Adding to the complexity of the subject are the Rules of Evidence and case law which limits the manner in which an attorney can present evidence on the subject. Over my years of practice, I have developed a simple, but effective approach to the subject through a “look back” at my closed cases to review the experiences of the client’s pain and suffering.  I have been amazed how important these types of damages claims are and in thinking about how best to present the evidence I have developed a simple, empirical approach to best argue for an appropriate award of compensation for such damages.

Recently I looked at the last five cases I settled to look for a trend that supports pain and suffering damages.  In those five cases, I determined that on average the client was seen in the emergency room at least once, if not twice, and in the follow-up medical care there were typically visits to a family doctor followed by referrals by that doctor for more tests (i.e.  X-rays, MRI’s, or electro-diagnostic testing) or to physical therapy.  The average number of medical office visits per case was twenty-six and the average length of time from the first date medical care was received to the last was five months, 19 days.

To capture the essence of pain and suffering after an injury, imagine for how many days in the almost six-month time period there was pain present.  Consider the anxiety of not feeling well and the annoyance of having to endure interruptions in one’s life to plan for and attend a medical office visit on twenty-six occasions.  Think of the time spent during those office visits and the effect on one’s home and employment situations.   The aggravation of setting aside other chores, responsibilities, and desires because there is pain, physical limitations, and the need to seek treatment are significant.  Thinking in these terms, there are a lot more to pain and suffering that just the physical pain.

We take great pains (no pun intended) to emphasize this aspect of the case, whether we are speaking to a short-sighted insurance adjuster in settlement talks or a to a skeptical juror at trial.  Often, I will simply present a calendar as an exhibit at trial and will mark off all of the days my client was scheduled to receive treatment or be tested.  This exhibit speaks volumes about the real pain and suffering endured due to someone else’s negligence and it becomes a stark reminder that pain and suffering damages are not only real, but they are in some respects the fullest measure of the damages suffered by the client.

If you desire a consultation with an attorney in our firm about your injury claim, be prepared to spend some time on this subject alone.  I believe in reviewing your own situation you will be surprised how significant such claims can be as we attempt to illustrate what you had to endure on the road to recovery.