When Can You Recover Damages for Pain and Suffering?

When a person is injured in a car accident, medical bills are usually the immediate concern.  Yet financial hardships aren’t the only consequences of an accidental injury.  In fact, the worst and most serious hardships are often those which aren’t financial, like the pain and suffering the victim endures while he or she recuperates.  This article will explain how compensation for pain and suffering works in Pennsylvania lawsuits and insurance claims.

When Can an Accident Victim Be Compensated for Injuries?  

Injury victims must prove the existence of four conditions in order to be awarded compensation:

1. The defendant had a duty of care toward the plaintiff, which simply means following laws, regulations, and professional standards to minimize the risk of causing death or injury.  Doctors have a duty of care toward their patients, drivers have a duty of care toward pedestrians and other drivers, store owners have a duty of care toward their customers, and landlords have a duty of care toward their tenants.
2. The defendant failed to meet the duty of care, which is called “breach of duty.”  Breach of duty can take many forms, depending on the situation.  For instance, in the context of medical malpractice, a breach of duty could be failing to sterilize equipment.  In the context of a motorcycle accident, a breach could be riding while intoxicated by drugs or alcohol.
3. The defendant’s actions were the cause of the accident, which is called “causation.”  There are two parts to causation: “actual cause,” or direct cause, and “proximate cause,” or indirect cause.  For example, the actual cause of a car accident is drifting into the wrong lane, while the indirect cause is the driver’s negligence.
4. The plaintiff was harmed as a result of the defendant’s actions, which is called “damages.”  

If all of these elements are in place, the plaintiff may be entitled to compensation.  However, while pain and suffering is a major aspect of the harm a defendant suffers after being in an accident, there are, unfortunately, some situations where Pennsylvania injury victims’ cannot recover compensation for pain and suffering – only their actual costs and losses.  The good news is that it’s possible to avoid this situation by selecting the right type of insurance coverage.

Economic Damages vs. Non-Economic Damages, and Full Tort vs. Limited Tort

Damages are separated into two categories: economic damages, and non-economic damages.  Economic damages are based on hard numbers and calculable financial losses, such as lost earnings and medical bills.  Pain and suffering is an example of non-economic damages, which, unlike economic damages, cannot be valuated objectively.  The reason this is important is that economic damages and non-economic damages are treated differently when a car accident victim files an insurance claim for injury compensation.

Like nearly all states, Pennsylvania enforces mandatory auto insurance requirements (failure to comply with which can expose you to hefty penalties, by the way).  When it’s time to buy or renew your auto insurance, you will have the opportunity to choose either “Full Tort” coverage or “Limited Tort” coverage, where the word “tort” refers to a civil act resulting in injury or death.  Limited Tort is the cheaper option, but also provides less coverage.  As stated in 75 Pa. Cons. Stat. § 1705, “Under [Limited Tort] insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses, but not for pain and suffering or other nonmonetary [i.e. non-economic] damages.”

However, the statute also makes an important exception.  While it is generally not possible to recover for pain and suffering with Limited Tort coverage, this limitation no longer applies if “the injuries suffered fall within the definition of ‘serious injury’ as set forth in the policy or unless one of several other exceptions noted in the policy applies.”  In other words, you can recover for pain and suffering with Limited Tort if your injuries are severe, which must be evaluated on a case-by-case basis.  Wrongful death, permanent disfigurement (e.g. skin grafts), and injuries resulting in functional impairments (e.g. limb amputation) are considered serious injuries.  

There are also some situations where it is possible to sue for pain and suffering, even if you chose the Limited Tort coverage option, including:

• The other driver deliberately caused the accident.
• If the driver at fault was uninsured.
• If the driver at fault is convicted of DUI or accepts ARD
• If the accident was due to defective vehicle or defective vehicle parts (product liability)
• You were hit by a car which was registered out-of-state.
• If you were a pedestrian or riding a bicycle
• You were riding on a bus, trolley, motorcycle or other commercial vehicle.  (If so, you might also be interested in reading about liability for a SEPTA accident in Philadelphia.)  

Full Tort coverage is more expensive, but will preserve your right to recover for pain and suffering.  As the same statute provides, “You and other household members covered under [a Full Tort] policy may seek recovery for all medical and other out-of-pocket expenses and may also seek financial compensation for pain and suffering and other nonmonetary damages as a result of injuries caused by other drivers.”  Thus, your choice of insurance has a direct impact on your right to compensation in the event of a crash or collision.  

In addition to car accident victims, Pennsylvania workplace accident victims are also subject to restrictions on compensation, as the Pennsylvania Worker’s Compensation Act does not include provisions for the recovery of damages for pain and suffering.  However, there is one exception: if a work-related injury is caused by a third party other than the employer, such as the manufacturer of a machine used in the workplace, recovery for pain and suffering may be possible by filing a lawsuit against the third party.  You can read more about this topic in our article on employer lawsuits and worker’s compensation.

Since pain and suffering has both subjective and objective aspects, it may be proven by a mix of subjective and objective evidence – for instance, a combination of testimony from the claimant, family members and medical experts.  Diagnostic testing results, photographs and videos are examples of objective means of proving the victim experienced pain and suffering.  

If You Think You Might Have a Case, Contact a Pennsylvania Personal Injury Lawyer That Can Fight for You

Recovering full compensation for non-economic losses can be challenging. Thus, it’s important to work with a knowledgeable and experienced attorney after you’ve been hurt in an accident.  Call Philadelphia personal injury lawyer Brent Wieand at (888) 789-3161 to talk about your options in a free and private legal consultation.

***Disclaimer: This article is for informational purposes.  It is not legal advice and should not be used as legal advice.***