The victim or injured plaintiff, himself or herself, may be the best person to testify in a case about their own level of pain and suffering. However, due to certain biases of defense counsel and others, a smart Plaintiffs’ California Personal Injury lawyer will not rely on a single source for pain and suffering evidence.
Consider the case of an injured plaintiff with a shockingly mutilated and distorted physical injury. The injured plaintiff testifies that he or she endured mental suffering caused by the injuries. During his or her testimony, he is asked to describe his injuries. He or she answers, physical pain, anxiety for fear that the injuries may prove so permanent and disabling as to render him or her incapable of supporting his or her family, grief that his or her disfigurement may humiliate and make him or her an object of ridicule.
Now consider the case of an injured plaintiff with an internal injury such as a neck injury, spinal injury or traumatic brain injury. Such injury is not shocking from mere observation of the injured plaintiff. Defense counsel might suggest that the injured plaintiff’s life was not altered in any way as a result of the injury or that the person has not suffered any pain and suffering.
Pain and suffering is defined as physical pain, mental suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation, and emotional distress that occurred as a result of an injury caused by the negligence of another.
California Civil Code section 1431.2 defines pain and suffering under California
law as non-monetary losses including, but not limited to, pain, suffering,
inconvenience, mental suffering, emotional distress, loss of society and
companionship, loss of consortium, injury to reputation and humiliation.
No fixed standard exists for deciding the amount of these noneconomic damages. A jury must decide a reasonable amount of damages for pain and suffering based on the evidence and their common sense. Injured plaintiffs can recover for past and future pain and suffering.
In addition to the testimony of the injured plaintiff, alternative sources of proof of pain and suffering must be analyzed early in the case to ensure that such evidence gets before the jury at trial.
A spouse or significant other can sometimes offer testimony about the injured plaintiffs’ behavior or appearance useful in assessing damages for pain and suffering. For example, a spouse can testify that the injured plaintiff wakes up night after night with cries of pain from his or her injury. Additionally, a spouse or significant other can provide corroboration of the injured plaintiffs’ inability to perform the same daily tasks as he or she used to be able to perform and also how that has affected the injured plaintiff mentally and emotionally. Other witnesses can and will sometimes offer similar testimony.
Hospital records drafted by physicians or nurses for treatment purposes, or notes in the office of the treating physician(s) may corroborate the fact that the injured plaintiff experienced pain and/or suffering.
Nurses' notes are also a rich source of information about the injured plaintiff's suffering. Frequent requests for pain medication, poor appetite, tears, and anxiety recorded by a nurse may support and corroborate plaintiff's testimony about the nature of that pain and distress. Additionally, medical records showing that pain medication were prescribed and that the injured plaintiff took the medication, are also evidence that the person experienced pain.
Doctors and nurses are usually an excellent and believable source of information about pain and suffering injured plaintiffs have experienced before trial. As for future pain and suffering, expert testimony is essentially indispensable.
The Jury’s observation of the injured plaintiff in court may be some of the most powerful evidence of pain and suffering to a jury at trial.
Even in the absence of any explicit evidence showing pain, the jury may infer it if the injury is such that the jury, in its common experience, knows that such an injury would normally be accompanied by pain.
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