Pain and suffering is one type of damage claim within a broader concept of a personal injury claim. When people refer to “pain and suffering” they are making a general reference to one part of a larger injury claim. In order to understand the value of a “pain and suffering” claim, one must understand a personal injury claim in its entirety.
The law provides that tort victims are entitled to claim the following damages: (1) nature, extent, and duration of the injury; (2) pain, discomfort, suffering, disability, disfigurement, and anxiety already experienced and reasonably probable to be experienced in the future as a result of the injury; (3) reasonable expenses of necessary medical care, treatment and services rendered and reasonably probable to be incurred in the future; (4) loss of earnings to date and any decrease in earning power or capacity in the future; (5) loss of enjoyment of life, that is, the participation in life’s activities to the quality and extent normally enjoyed before the injury. The law also permits other types of damages that may apply for certain types of fact situations (such as loss of consortium, etc), though these are not generally applicable for most injuries and cases. The case law in Arizona provides for the following (citations excluded): Unlimited recovery for actual damages, expenses for past and prospective medical care, past and prospective pain and suffering, lost earnings and diminished earning capacity; all expenses and for the value of services reasonably made necessary by the harm. Once the right to damages is established, uncertainty as to the amount of damages does not preclude recovery. Pain and suffering are separately compensable damages from “loss of enjoyment of life” which compensates victims for the limitations resulting from the defendant’s negligence or the injured person’s ability to participate in and derive pleasure from the normal activities of daily life. In other words, any injury that the victim can prove is proximately caused by the acts of the wrongdoer.
As you can decipher from the legal explanation above, “pain and suffering” is short-hand terminology of a more specific legal concept. It would include “nature, extent, and duration of the injury” as well as “pain, discomfort, suffering and anxiety” that one has experienced and is reasonably probable to be experienced. It is primarily based on the specific injury incurred. If the injury is considered permanent, then the “pain and suffering” surrounding the injury is magnified by the injury itself. Thus, loss of a limb or loss of function that is deemed permanent will increase one’s pain and suffering. A neck or low back strain will have considerably less pain and suffering than a fracture, tear or permanent loss of function. Thus, pain and suffering is a concept entirely dependent on the nature and extent of the injury itself. Injuries that do not affect function (ability to move or perform daily activities) will not be compensated under the concept of pain and suffering like injuries that affect the function or that have a longer duration.
What makes compensation for pain and suffering “fair” or unfair is wholly within the discretion of a decision-maker (arbitrator or jury) unless the parties reach a settlement before the matter is decided upon. If settled, what is deemed “fair” compensation lies entirely with the victim and the wrongdoer and their ability to agree on what is “fair.”
Personal injury law can be extremely complex. This is why it’s important to have the right Phoenix personal injury lawyer representing you in your case.