Showing Pain and Suffering in a Personal Injury Lawsuit

Brad Nakase, Attorney


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There has been a perception of the term “Chronic pain” to be an uncomplimentary term in personal injury litigations. Efforts towards the matter have been at the forefront, but still, many perceive that the “disability” is unreal. However, for many individuals, chronic pain syndrome is a very disabling condition. It’s also genuine since it makes you entitled to compensation when another individual caused the injury, according to the provision of law. Overall, the plaintiff’s credibility is the prime aspect in this case. Credibility is vital in an aspect where the source of pain goes beyond the skin, to involve soft tissue injuries. This article provides personal injury lawyers, health care professionals, and  the prospective injured person with an understanding of:

  • Fresh judicial treatment of cases associated with chronic pain

  • Medical-legal schemes on building a persuasive chronic pain case

  • What to anticipate when handling cases on chronic pain


EXPECTATIONS FOR A PROSPECTIVE CHRONIC PAIN PLAINTIFF

Anticipate the presence of a jury

The parties involved have the choice to seek trial by either jury or judge in a civil lawsuit. In California State, twelve grownups get selected randomly to form a civil jury. Nevertheless, juries are commonly known to be “cheap” and unpredictable. The civil jury, according to many people, considers making decisions based on their personal experiences compared to judges. Hence, the defendant, for every chronic pain case, needs to file a jury notice.

Expect to experience bias

The hardest part of a chronic pain injury case is convincing the jury that the plaintiffs’ pain is real. Overall the following three biases need to be overcome.

  1. There is a prevalent notion that the plaintiff is faking for the sake of money. Chronic pain, unlike physical scars, or brain damage, does not relate to “objective” injuries, which means that the syndrome results not from injuries that are visible in CT, MRI, or X-ray scans. Instead, chronic pain intrinsically is felt; hence it’s hard to convince someone.

  2. There is a biased belief that the pain isn’t “that bad” even if the plaintiff proves to be in pain. Pain is one thing that almost everyone has experienced. The problem is that individuals relate chronic pain to normal pain. Overlooking the level of severances and constant pain that people suffering from chronic pain undergo. This results from too little compensation for the losses.

  3. Even if the plaintiff is clearly in pain, a biased belief may be present arguing that the plaintiff decides to remain in pain to receive compensation.

Anticipate the litigation to last for years

Sadly in civil litigation, no deadline is set for resolution of the case. Averagely, it takes about three years for a personal injury case decided. Conversely, chronic pain cases prove to take longer than the given range because:

  1. Chronic pain directly relates to chronicity. Individuals who experience back pain due to an accident (wrongdoing) cannot be diagnosed with chronic pain days later. However, chronic pain syndrome is one which, months later, still there is little or no improvement noticed. 

  2. Unless an individual reaches a certain level of impairment, legal obstacles inhibit the right to recover full compensation in motor vehicle cases only. This “threshold” is applicable when recovering health care costs (current and future) and general damages. The general damages include claims for suffering and pain. In case the plaintiff’s disability doesn’t reach the “threshold,” he or she is not entitled to health care and general damages cost. The set “threshold” is clearly defined by the insurance act. According to the Insurance Act,” threshold” is a severe permanent impairment or disfigurement on significant body organs. Hence it takes time for a medic to conclude that the injury on soft tissue is permanent. However, this is different from other cases, for example, of amputation where it is easy to determine permanent disfigurement.

  3. Due to the threshold and credibility issues in the case, at least one defense medical examination gets involved. Further analysis of the same is provided later in the paper. Overall, defense medical examination prolongs the litigation concerning the duration of the lawsuit because:

          – The jury cannot hear the case until the plaintiff gets examined for disclosure (answering under oath).

          – Wait times are lengthy for such issues since the inspectors also have to treat medical practices.

         – The full reports are not available for some months after the assessment.

Expect privacy intrusion

All chronic pain cases involve invasion into accusers’ privacy, for instance, having the complainant’s medical records revealed. Furthermore, the plaintiff could get put under surveillance, including monitoring of his or her social media accounts. The prime reason is one being able to establish if what the plaintiff says is contrary to actions.


APPROACHES YOU CAN USE TO BUILD A CONVINCING CHRONIC PAIN CASE

Never file a jury notice

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