Monday, August 17, 2009

Defense Lawyer Claims Pain Is Not A Personal Injury

I swear I didn't make this up. A local defense lawyer sent a demand letter to a plaintiff's attorney that he delete "pain" from the injuries in a suit because "pain is not an injury."

When Eric Gottfried, the plaintiffs attorney, got the letter, his jaw dropped. Pain not an injury? In his response, Gottfried referred the defense lawyer to a "beginning tutorial on how 'pain' is central and essential to a personal injury lawsuit." You can see the demand and response here: /DefendantsNonsense.pdf

The case seems to be a routine personal injury matter, as per Gottfried: Plaintiff is hit in the rear by the defendant in a car accident. Plaintiff has suffered a number of injuries, including a fractured nose (with surgery), three fractured vertebrae, fractured rib and rotator cuff injury, among others.

The tort "reformers" like to use anecdotes to "prove" that there are frivolous lawsuits. (Many of those cases, in turn, are pro se matters.) So here is the flip side: The most utterly worthless and frivolous legal argument that I can imagine coming out of a real law firm.

The difference, of course, is that defendants get paid to make frivolous arguments (when billing hourly) while plaintiffs lose time and money doing so (while using the contingency fee).

Labels: Frivolous Claims

posted by Eric Turkewitz
Permanent Link

Comments:

I agree. Pain is too subjective to be fairly evaluated. Anyone can claim "pain" from any accident, no matter how minor and even if no objective injuries (like broke bones).

The whole concept of "pain and suffering" is an offshoot only from "real injuries" that are apparent via objective tests (such as x-rays, etc.).

Many personal injury lawsuits are soft tissue only (if that), with "pain and suffering" alleged. Those are total BS lawsuits and should be thrown out as the injuries alleged are too vague.

# posted by  Anonymous : August 18, 2009 10:23 AM

 

Many personal injury lawsuits are soft tissue only (if that), with "pain and suffering" alleged. Those are total BS lawsuits and should be thrown out as the injuries alleged are too vague.

Spoken like a true insurance adjuster.

# posted by  Eric Turkewitz : August 18, 2009 10:44 AM

 

In response to "spoken like a true insurance adjuster" - how can anyone determine the validity of a subjective "I feel pain" statement, when no medical tests verify the pain? Should we just take the word of the plaintiff?

Its too easy to lie about that (or have lawyers coach the plaintiff on what to say). Damages should be subject to actual objective proof -- not the self-serving statements of the allegedly injured.

"Pain & suffering" claims keep plaintiff lawyers busy -- true. But in reality are generally hyped by the plaintiffs. Trust me -- I know this for a fact.

# posted by  Anonymous : August 18, 2009 11:43 AM

 

The plaintiff in this case had numerous fractures. Perhaps you are saying that those fractures didn't hurt?

Maybe pain is all some metaphysical state of mind?

Perhaps there is no such thing as pain? It doesn't actually exist?

My own experience is that those who deny the existence of pain are people who have never suffered it.

# posted by  Eric Turkewitz : August 18, 2009 11:55 AM

 

Dear Allstate Adjuster:

Talk about drinking the insurance company Kool-Aid !

It is no easier for a plaintiff to lie about the agony he feels following an injury than it is for a defendant to lie about his culpability for an accident or an insurance company to hire a physician to lie about his findings during a medical exam of a Plaintiff.

How is it that you "know this for a fact ?" Are you a medical doctor ? A defense lawyer ?

Sometimes, Doctor, people suffer injuries that can’t be seen on an x-ray film up on a shadow box. I have a client whose doctor failed to diagnose her cancer for a full year. Now she has metastatic disease and prays for the sweet release of death to free her from her never-ending pain. I’ll give her your telephone number and you can explain how she’s not suffering and shouldn’t sue her physician for his monolithic incompetence because, in your infinite wisdom, she’s not suffering.

Or how about my client that can’t get through a day without the haze of morphine dulling his senses because he suffers from Complex Regional Pain Syndrome following a hit-in-the-rear auto accident. Afterall CRP can’t be seen on a blood test. Explain to him that he has no viable claim.

Signed,
Jim Jones

# posted by  Anonymous : August 18, 2009 12:34 PM

 

In response to: Perhaps there is no such thing as pain? It doesn't actually exist?

My own experience is that those who deny the existence of pain are people who have never suffered it.
--

I'm not saying that pain doesn't exist. I'm saying compensate the injured for medical bills, lost wages, whatever -- as long as it is subject to objective proof. Pain exists of course -- but is too subjective to be the subject of damages awards. It is too easy to exaggerate, to fake -- even where it does actually exist.

If I break my arm due to someone's negligence, the compensation should be for the broken arm (costs to repair, lost time from work -- whatever). Not my subjective PAIN due to the broken arm. And if I'm given pain kilers at the hospital --- then don't I only have pain that I feel for the time it took to get to the hospital?

# posted by  Anonymous : August 18, 2009 12:47 PM

 

Great !
Just to make sure I understand this, as long as someone pays for your medical bills and out-of-pocket expenses they can come to your house and break your non-dominant arm ?
That won't stop you from doing your job (presumably as village idiot) and then, by your logic, you'll have nothing to complain about.
Think about the absurdity of your position.
Obviously explaining the equities of this situation is like trying to teach a pig math - it wastes my time and annoys the pig.

# posted by  Anonymous : August 18, 2009 12:53 PM

 

I'm saying compensate the injured for medical bills, lost wages, whatever -- as long as it is subject to objective proof. Pain exists of course -- but is too subjective to be the subject of damages awards.

Under your scenario, the victim bears the burden of all the pain that was caused by another's negligence. The wrongdoer gets immunity from this element of damages.

Where I come from, we were taught that you were responsible for your actions.

Yes, it is sometimes hard to prove pain. But that is what juries are for. And I've yet to see a defense lawyer play the part of a potted plant when it comes to contesting the issue.

# posted by  Eric Turkewitz : August 18, 2009 12:55 PM

 

To Jim Jones:

1. Patient with cancer has medical costs, lost wages etc. Those are reliable and easily calculated damages. Her amount of pain is subjective.

And who's to say that even if the Dr. found the cancer a year earlier, it would not have spread regardless. Yes, you can find an expert to testify about anything -- I know. People get cancer --- people have car accidents -- not every bad thing that happens means a lawsuit should be filed. Sometimes that is just life my friend and it is not perfect.

How do you know your other client has CRP? Maybe he/she is lying about it. Regardless, costs of medical care, drugs and lost wages are compensation for that client.

Lying about culpability of an accident has nothing to do with this issue? That's liability. We are talking damages. And (unless there is a counterclaim) there are no damages to lie about on the defense side. Both sides exaggerate and lie about liability issues -- true. But they are BOTH doing it.

Damages should not be hard: here is the invoice, here is what I earned, etc. Lawyers just over complicate everything by throwing in the kitchen sink -- including subjective allegations of "pain".

# posted by  Anonymous : August 18, 2009 12:57 PM

 

Under your scenario, the victim bears the burden of all the pain that was caused by another's negligence. The wrongdoer gets immunity from this element of damages.

Where I come from, we were taught that you were responsible for your actions.
----------

There is no monetary burden to pain -- other than lost wages or the costs of prescription drugs. If that is compensated, there is no "burden". After all, money doesn't stop pain -- does it?

Funny how the guy on my block who sued the local bus company after an accident, now lives a life of luxury (plays tennis every day) and has no obvious detriment to his life whatsoever -- he even jokes about his lawsuit money. He doesn't have to work and moved up about 3 classes of wealth in society, from urban poor, to upper middle class.

I'm sure he had lots of "pain" during his lawsuit testimony.

# posted by  Anonymous : August 18, 2009 1:06 PM

 

There is no monetary burden to pain -- other than lost wages or the costs of prescription drugs. If that is compensated, there is no "burden".

Only someone without pain would say that someone else living with pain would not have a burden.

There is a pretty good list of tort "reformers" who finally understood the ramifications of their theories after they were injured.

You can read some of them here at the bottom of this blog posting on the Texas med mal caps:

http://www.newyorkpersonalinjuryattorneyblog.com/2009/04/do-texas-med-mal-damage-caps-work-what.html

I have no doubt your tune would change quickly if you were the one in the wheelchair.

# posted by  Eric Turkewitz : August 18, 2009 1:13 PM

 

"Pain is too subjective to be fairly evaluated."

Have you not broken many bones?!? A juror who has will understand and can put a fair price on the probable amount of pain. (And let me tell you, depending on the bone, it can be extremely painful.)

"Many personal injury lawsuits are soft tissue only (if that), with 'pain and suffering' alleged. Those are total BS lawsuits and should be thrown out as the injuries alleged are too vague."

Claims of pain are not the only forms of proof of soft tissue injuries. An experienced doctor can often tell just by looking at the people that they are injured. Their resting positions are not normal looking. Additionally, their ranges of motion are often limited. Plus, their tendons may feel extremely tight in the affected areas, depending on the type of injury (can't fake that).

Try not to be so closed minded about things you clearly have little to no personal experience with.

# posted by  Anonymous : August 18, 2009 6:30 PM

 

You're right that the argument is absurd.

But Mendolia & Stenz is in house for an insurance company -- so they don't get to bill hours for making frivolous arguments.

# posted by  Anonymous : August 19, 2009 8:49 PM

 

But Mendolia & Stenz is in house for an insurance company -- so they don't get to bill hours for making frivolous arguments.

I'm open to alternate suggestions as to why someone would make such a frivolous demand.

# posted by  Eric Turkewitz : August 19, 2009 9:05 PM

 

I took roughly the same position as the author over at my blog: http://lawblog.legalmatch.com/2009/08/24/is-pain-an-injury/

# posted by  Anonymous : August 24, 2009 5:05 PM

 

I've worked both sides of the courtroom, and agree that "pain" in and of itself is not an "injury" - it is the manifestation of an injury. As a BP is to amplify the pleadings, and it does not serve to give testimony such as "my back hurts"...that is not the function. Practically, however, "pain, etc." has been a part of BPs from the stoneage, so what is the harm. I'd like to see some motion practice on it, though!!

# posted by  Gilbert : December 10, 2009 6:27 PM

 

Post a Comment

Links to this post:

<$BlogBacklinkTitle$>  
<$BlogBacklinkSnippet$>

posted by <$BlogBacklinkAuthor$> @ <$BlogBacklinkDateTime$>

Create a Link

<< Home

The New York Personal Injury Law Blog is sponsored by its creator, Eric Turkewitz of The Turkewitz Law Firm. The blog might be considered a form of attorney advertising in accordance with New York rules going into effect February 1, 2007 (22 NYCRR 1200.1, et. seq.) As of July 14, 2008, Law.com became an advertiser, as you can see in the sidebar. Law.com does not control the editorial content of the blog in any way.

Throughout the blog as it develops, you may see examples of cases we have handled, or cases from others, that are used for illustrative purposes. Since all cases are different, and legal authority may change from year to year, it is important to remember that prior results in any particular case do not guarantee or predict similar outcomes with respect to any future matter, including yours, in which any lawyer or law firm may be retained.

Some of the commentary may be become outdated. Some might be a minority opinion, or simply wrong. No reader should consider this site (or any other) to be authoritative, and if a legal issue is presented, the reader should contact an attorney of his or her own choosing for advice.

Finally, we are not responsible for the comments of others that may be added to this site.