What is Pain and Suffering? What is Emotional Distress? Unpacking Two Common Legal Terms

What are “pain and suffering” and “emotional distress” in the legal world? There is a lot of confusion about what these terms mean and when they come into play, so let’s clear it up.

Pain and suffering most frequently comes up in personal injury cases such as car accidents or slip and fall cases, when your attorney is calculating an appropriate sum to demand in settlement (and thereafter negotiating with an insurance company). Your attorney will start with all of your medical records and medical bills: hospital visits following the accident, follow-up with your primary care, and any physical therapy appointments that were necessary to deal with your injuries. Because more and more people are pursuing holistic alternatives to pain management, a good injury attorney will get those records too – for example, from your acupuncturist or massage therapist. Besides medical bills, your attorney will look at whether you missed any days or partial days from work due to your injuries – for example, if you had surgery after the car accident (or other injury) and were unable to go to work for several weeks.

Adding all of that up is one aspect of the “damages,” or losses, you experienced as a result of your injury. All of those pieces have concrete dollar amounts associated with them. For example, an MRI might cost $2,000. If you missed an eight-hour day of work at $20 per hour, you lost $160 in wages.

But what about all the aches and pains that lasted for months and months? The back and forth to a million physical therapy appointments? Maybe you were in a truly scary car accident, and it caused you to avoid driving for several months. Maybe you have a permanent facial scar on your face, and, sadly, you have been dealing with feelings of embarrassment and inadequacy since your injury.

All of these factors are lumped into “pain and suffering.” It’s impossible to accurately put a dollar figure on these types of things, but you are entitled to compensation for them.

One way that some attorneys and some insurance companies try to put a value on your pain and suffering is to use your medical bills and lost wages as a starting point and multiply them by something between 1 and 5, depending on a number of factors including: the severity of your pain, the type and length of treatment you underwent, long-term consequences, limitation of daily activities, and the level of negligence of the at-fault party.

For example, if you were in a car accident that was clearly caused by someone else; you were rushed to the hospital where you received an MRI and were diagnosed with a broken elbow and a concussion; you had surgery to correct your broken elbow, following which you missed 3 weeks of work; and you then did physical therapy and acupuncture to treat your injuries for the next 9 months; your medical bills and lost wages might add up to, let’s say, $20,000. In coming up with a figure for pain and suffering, your attorney might go as high as $60,000-80,000, knowing that the insurance company will low-ball you and you will need room to negotiate.  The pain and suffering figure is based on treatment lasting 9 months or more and significant injuries requiring surgery and PT, but no permanent injuries.

So that’s pain and suffering. Emotional distress is something entirely different. Although emotional distress or psychological anguish could be a part of pain and suffering in a personal injury claim, emotional distress is an aspect of the recoverable damages in many different types of legal claims (for example, if you sue someone for defamation, you can recover everything from lost business to compensation for emotional distress). There are also two distinct claims for emotional distress: negligent infliction of emotional distress and intentional infliction of emotional distress. Both are very difficult claims, even though people throw around the term “emotional distress” very commonly. NIED only comes into play in very specific circumstances, such as when a parent witnesses the physical injury or death of a child. And for IIED, the intentional conduct must be “outrageous,” which is far beyond what most people experience on a daily basis.

If you have been in a car accident, a slip and fall accident, or have been injured in some other way, or if you believe you may have another legal claim that has produced emotional distress, please call the attorneys at Levine-Piro Law, P.C. at (978) 637-2048 to schedule a consultation.