How Pain and Suffering Is Proven & Documented

Pain and suffering is one of the more misunderstood parts of a claim, mostly because it is the one part with nothing to invoice. A hospital sends a bill and an employer confirms missed hours. Pain and suffering has to be shown another way. This guide covers what it covers and how it is evidenced. For how insurers reach a figure, see what affects your settlement.

What does pain and suffering cover?

Cornell’s Legal Information Institute defines it as the physical discomfort and emotional distress that are compensable as non-economic damages, and says the category includes discomfort, anguish, inconvenience and emotional trauma that come with an injury. In New York, it adds, the term includes all items of non-pecuniary damages, including loss of enjoyment of life. Terms differ by state, but the usual parts are:

• Physical pain, from the injury and its treatment, now and ongoing.
• Emotional distress, such as anxiety, poor sleep or fear of driving after the crash. See emotional recovery after an accident.
• Loss of enjoyment of life, being unable to do things you did before, from time with your children to a sport or hobby.
• Loss of consortium, in some states, which concerns a spouse’s loss and is generally a separate claim belonging to the spouse. Rules vary by state.

How is pain and suffering proven?

Since there is no bill, the claim usually rests on a mix of records and accounts. The common thread is that evidence made close to the events is more convincing than memory months later.

• Medical records. Not only the diagnosis, but your own reports of pain and limits at each visit.
• A journal made at the time. Short dated notes on pain, sleep and activities you missed.
• Statements from people close to you. A spouse, relative or friend describing what has changed.
• Mental health records, where relevant. A diagnosis or treatment for anxiety, depression or PTSD linked to the crash is supporting evidence, not something to downplay.
• Employer or coach notes, where the harm shows up in work or activities.

What evidence fits each kind of harm?

Kind of harm	Evidence that helps	What to avoid
Physical pain	Visit notes with pain levels; treatment and therapy records; journal entries	Skipping visits, which leaves gaps
Sleep and mood	Journal; doctor or therapist notes; statements from family	Saying “fine” at visits when you are not
Loss of enjoyment	Dated list of activities you stopped; statements from friends; photos of earlier activity	General statements with no examples
Driving fear or anxiety	Clinician notes; journal; records of avoided trips	Waiting months before telling anyone
Long-term limits	Doctor’s note on limits; therapy records; work adjustments	Overstating what you cannot do

NIMH notes that a PTSD diagnosis requires symptoms for longer than a month that interfere with daily life, and that only a clinician makes it. That is one reason treatment records matter more than your own label for how you feel.

How do I keep a useful pain journal?

Keep it short and keep it daily or every few days. Note the date, a pain score from 0 to 10 in your own terms, how you slept, what you could not do and why. Use plain facts, not arguments, and do not exaggerate; a measured journal reads as credible. Our post-accident journal gives a simple format, and the expense tracker keeps the money side in one place.

Why do gaps in medical care matter?

Insurers look at treatment records to judge how serious the harm was. A gap in care gives them room to say the pain eased, or came from something else. If you cannot attend appointments because of cost, work or travel, tell your provider and write down why. If pain continues, return and say so. Our guides on delayed injury symptoms and what to do after a car accident explain why early records matter.

Does no-fault insurance limit pain and suffering claims?

In some states, yes. The Insurance Information Institute (III) explains that in no-fault states, tort thresholds limit when you can sue for severe injuries and pain and suffering. A verbal threshold uses descriptions of injury severity; a monetary threshold uses a set amount of medical bills. It lists Florida, Michigan, New Jersey, New York and Pennsylvania as verbal-threshold states, and Hawaii, Kansas, Kentucky, Massachusetts, Minnesota, North Dakota and Utah as monetary-threshold states. If you live in one, see no-fault states first.

Do some states cap non-economic damages?

Some states set limits on non-economic damages, and which states and at what level changes over time as courts and legislatures act. We do not publish a list here because we have not verified a current one against each statute. Check your own state’s current law, or ask a qualified attorney, before assuming that pain and suffering is capped or unlimited where you live. For deadlines that apply to the whole claim, see the statute of limitations guide, and for the way shared blame can reduce a recovery, see car accident laws by state.

How is a figure reached?

There is no single formula that applies everywhere. Insurers, courts and juries use their own methods, and the result turns on the injury, the treatment, fault, policy limits and state law. Be wary of anyone who offers you a number before they have your records. The collateral source rule, which Cornell describes as a tort doctrine, also affects how damages are reduced or not by other payments, and state law varies. Our guides on how settlements work and accepting the first offer cover the process.

Do I need a lawyer to claim pain and suffering?

Not always. For a minor injury that has healed, many people deal with the insurer directly. Serious injuries, a long recovery, a disputed claim or a state with caps or thresholds are where advice is more often sought. Read do I need a lawyer after a car accident for a straight answer.