The phrase "Pain and Suffering" is used in California to describe compensable damages for physical injury or emotional distress that results from a personal injury. Almost four decades ago, the California Supreme Court addressed this issue stating: "In general, courts have not attempted to draw distinctions between the elements of "pain" on the one hand, and "suffering" on the other; rather, the unitary concept of "pain and suffering" has served as a convenient label under which a plaintiff may recover not only for physical pain for fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal." Capelouto v. Kaiser Found. Hosps. (1972) 7 Cal. 3d 889, 892-893.
A person injured by the negligent or wrongful conduct of another is entitled to recover "pain and suffering" damages. Injured persons commonly suffer great interruption in their lives. Small details and mundane routines become painful and difficult. Sleepless nights, stiffness, pain, fear of undergoing medical treatment or worrying that one might fully recover from a physical or emotional harm are common thoughts and experiences. Other injured people become nervous and worry about their jobs, home life, and overall health. When a person is seriously injured in a personal injury action, the person's mind often races with a flood of fears, worries. Embarrassment and indignity frequently accompany being disabled or disfigured from a personal injury accident.
These experiences are so common that they are hardly questioned as authentic symptoms of an accident. But the severity, frequency, and length of time that these symptoms and experiences last are hard fought over in litigation. Unfortunately, the injured person, pre-occupied with the sudden onset of the accident, the pain, and interference in the quality of his or her life, fails to record what is happening in his or her life. Compensable forms of emotional stress need to be documented if a lawsuit is contemplated or underway.
The problem that many injured people face is trying to reconstruct all their thoughts that plagued them as they suffered living day by day after being injured. Whether it is presenting information to an insurance claims adjuster, a mediator, an arbitrator or to a jury or a judge at time of trial, comprehensive and accurate rendition of the emotional distress is essential to maximizing recovery. One easy and simple solution is to keep a daily diary of how you are doing, your thoughts, and your emotions, your concerns about your injury, recovery, and financial affairs during recovery.
This diary should be marked 'FOR MY ATTORNEY" even if you don't yet have an attorney. By labeling the daily diary "FOR MY ATTORNEY" that may preserve the attorney-client privilege and maintain the confidentiality of your thought processes. Naturally, during discovery, settlement or trial, these elements of "pain and suffering" will have to be fully disclosed and explored. By having a contemporaneous record, you will be in much better position to explain your "pain and suffering " and maximize your personal injury recovery.
