EP 05 S 09: How To Prove Pain And Suffering In Personal Injury Claims

Join New York City personal injury trial attorney, Arkady Frekhtman, in an enlightening discussion on the implications and real-life experiences of pain in personal injury cases. Drawing from an intriguing book called “The Body in Pain” by Elaine Scarry, Arkady discusses how the book’s philosophies can be applied to trials, highlighting the challenges in proving pain and the ways in which the impact of injury transcends the physical into the psychological and mental realms, altering the victim’s relationship with the world and themselves.

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SUMMARY:

TRANSCRIPT:

[00:00:00] Hi everybody. This is Arkady Frekhtman, a New York City personal injury trial attorney, and today I wanted to talk about how we as attorneys can prove someone’s pain. And so one of the ways that I prepare for a case, Is to review, of course, the medical records and look at objective findings like the emergency room record, the MRIs, EMGs, and things like that.

[00:00:42] Also, interviewing the client, interviewing witnesses, and circle of friends. But then sometimes you also have to think about how. The pain has affected their lives. And so you get that from the medical records, you get that from doctors, you get that from their friends and family, the things that they love to do, their passions in life.

[00:01:05] And you know, sometimes you even have to, um, read a little bit about pain. So I was reading this one book, and it’s an interesting book. It’s a book about pain and how pain relates. To the World, and it’s a little bit like an erudite type scholarly book, but it had a few points that I think are worth noting.

[00:01:25] And one of them was kind of like a point that becomes a central point in personal injury trials. And it was a quote, and I forget who said it, but I, I believe it was, it was mentioned in this book and it basically, uh, the quote is to have pain is to have certainty, but to hear about pain is to have doubt.

[00:01:47] And I thought that was a really, you know, brilliant point and it kind of summarizes the essence of personal injury trials between plaintiffs who are seeking a lot of money to compensate them for their suffering versus defendants’ insurance [00:02:00] companies who are trying to either pay nothing or low ball.

[00:02:03] And it’s the point that, that the quote makes that if you have pain as a personal injury victim, Whether it’s a brain injury, a spinal fusion spinal, a back serious back injury, you know, it could be anything. But if you have lingering lifelong daily pain, constant pain, you are certain that you have it.

[00:02:25] But for whatever reason, when other people hear about pain, they, they, they doubt it. They say like, oh, you might be a faker. You might just be looking for a lawsuit or lottery. They don’t wanna believe it. If you have pain, they might say that your pain is from something else, right? Not from this crash, but it’s from something else, from living your life, and you’re trying to get a payday.

[00:02:49] So it’s kind of like a very common theme. So the other part about this book, um, and the book by the way, is called My, the Bo, my, the Body in Pain. I believe it’s by [00:03:00] an author Elaine Scarry, who is a professor at Harvard. And it’s a, it’s an older book. I think she wrote it in like the 1970s. It’s a kind of a classic book, but, uh, I didn’t finish reading the entire book, but I, I read some of it and I thought it was very interesting.

[00:03:14] Some of it, like I was saying before, is kind of like very scholarly, but a lot of it you can’t apply to, uh, your work as an attorney or doctors could probably use it and patients could probably use some of the philosophy. So another point that she made is that the distinction between my body hurts. When you’re in pain, you say, my body hurts versus My body hurts me.

[00:03:39] And I thought that was an interesting distinction because what she’s saying is that when your body hurts you, your body is not you. You know your mind and you know that your, either your soul or your mind, your, your consciousness and you know that, hey, your body is hurting you and there’s nothing you can do about it.

[00:03:55] So you’re almost like you’re trapped and it leads to issues such as your [00:04:00] self-image, right? Or your. Self betrayal. Why is my body betraying me? Your dignity and your, um, sometimes it could lead if it’s really bad pain, it could lead to even like self-hatred because the body is the cause of your pain, but there’s not much you can do about it.

[00:04:16] And um, the other point is that pain cannot be expressed. I mean, you could express, you could say I am in pain, but you can’t express it fully. Right? You can’t express it with language. There’s certain. When, when you’re in really like severe pain, it’s not nothing you could really do in terms of language.

[00:04:35] It can’t be shared, right? You can’t share it with anyone else. And she talks about the sharability and, um, so I mean, she talks sometimes in the book about other things, like she talks about, um, She talks about, for example, uh, like torture and war, which doesn’t necessarily have to do with personal injury [00:05:00] trials, but some parts are interesting.

[00:05:02] Like one part she talks about what is remembered in the body is strong, and it’s almost like the same point that another author made that the body memory is beyond the reach of. Culture or or beyond the reach of even like cognition that the body keeps the score. So if you get into, let’s say, some kind of trauma, your body will remember it.

[00:05:23] So say you got hit by a know a truck or a car. Now every time you cross the street, you might be scared, you might not even be conscious, but your body remembers it. The same way that some people have traumatic memories from childhood if they were abused and um, The body encounters these foreign agents or foreign bodies, and then the body releases its own defenses in the, like R N A D N A.

[00:05:50] And it’s a type of replication type of memory. And um, it’s like, for example, when you have a knowledge of a song in your fingertips when you play the piano [00:06:00] or you have muscle memory from playing a sport like baseball or tennis. Uh, so it’s kind of similar to that, that your body just kind of keeps. The score.

[00:06:07] But now your body’s keeping the score of trauma, of, of, of serious, um, serious pain, serious injury.

[00:06:23] And then another point she makes is that, um,

[00:06:30] when someone is in pain, they enter a new world. And in that world, If others say that it isn’t real, it hurts the person even more. So that’s a point that you could use in a personal injury trial. If somebody really does have daily pain. Some people call it pilot light pain because it’s almost like a pilot light.

[00:06:49] It’s always on, it’s always burning, it’s always causing you pain. But if someone else, like, whether it’s the insurance company, the defense lawyer, or anyone, right? It could be like just a, a [00:07:00] friend says, oh, you know what? It’s, it’s not real. Get over it. It could cause you even more pain because it could make you think like, well, even though it’s my neighbor or my friend saying, Hey, why don’t I just get over it, but I can’t because it’s so debilitating.

[00:07:12] It’s so bad, but it’s my pain, right? So only I know what it’s really like, but they’re saying I should just get over it. So then it makes me even more hurt, um, because now I feel like I’m not worthy. I’m not good enough. I, I, I can’t deal with it. So that goes back to the issue of like dignity and self-betrayal.

[00:07:34] And then she also talks about pain in terms of isolation, shame, and intense humiliation, and pain is shameful. And it’s like another dimension. It’s the loss of language. There’s no learned language. Um, there’s no expression, and it kind of destroys the capacity for speech because if you have severe pain, you’re not able to speak anymore.

[00:07:58] It just destroys the capacity. It [00:08:00] destroys a human being. And the way that human being sees themselves, sees their body. So when they look in the mirror, they don’t really see themselves, they see someone else. So say, for example, someone was strong, someone was, um, an athlete, and they looked at themselves in a certain way.

[00:08:18] So when they looked in the mirror, they thought, this is me. I’m that athlete, I’m that baseball player. I’m that guy. Who does these activities? I’m the father, I’m the, you know, however, they saw themselves, their self-image. But then after they got into a bad, let’s say car crash and they needed a spinal fusion, did they become more crippled?

[00:08:37] They, they lose, uh, partially lose the use of or function of either their arm or their leg. Now they look in the mirror again and they see someone else. It’s not the same person that they were. So the post-pain body is different in all respects to physical, psychological, the mental. And um, [00:09:00] so that’s, that’s an interesting point that she made.

[00:09:07] And she’s also talking about the fact that um, what pain also does is, um, it destroys objects. As they exist in the mind of a human being. So for example, if you looked at, at a certain way, at something simple like, like, like baseball for example. You look at a baseball bat, and you always thought, Hey, this is my baseball bat.

[00:09:29] I’m gonna go out, I’m gonna hit a home run. I, I like it, I go to my softball games. This is what I do. This is my, this is my, uh, me time. I have a buddy. We’re all on the softball team together. But after you get into like, say a bad wreck, you can’t do it anymore. You look at that baseball bat, you look at it differently.

[00:09:44] You look at it just as a. As a battle or just as a reminder of something that you’ll never be able to do again. So it’s not a happy memory anymore. So it changes the objects. And that could be the same for like say a fishing rod or a chair [00:10:00] even, because sitting in a chair can cause a lot of pain, a golf club, so you never look at objects the same way.

[00:10:07] And then she also talked about the fact that people want to avoid. Feeling the real harm that their actions have caused. So for example, when she talked about war in the book, she said that, um, it’s almost like a neutering or a cleaning of language. Like for example, when, uh, a country bombs another country or, or, or there’s bombing, they don’t call it necessarily like bombing or that killing what they call it is they use.

[00:10:39] They compare it to like vegetables. They say, oh, it’s a day of harvesting, or it’s the pink roses. Uh, and the reason they do that is because vegetables don’t feel pain and they don’t want, they want to avoid feeling the real harm that they cause. They don’t want to allow the reality of suffering to enter the description.[00:11:00]

[00:11:00] So it’s almost like a mental, a mental thing that they just don’t wanna allow it. And it’s the same thing when she talks about war. She talks about people say, Hey, I’m going off to war. I’m going off to die for my country, but nobody says I’m going off to kill for my country. Um, and no one says I’m going off to alter someone’s body tissue, whether it’s my own, right?

[00:11:24] If I’m a, if I’m a, a soldier, it could be my own, I could be killed, right? I could be, I could be hurt. So it could be, um, I could be altering my own body tissue or I could be altering someone else’s, uh, body tissue. So I don’t know. It is, it’s interesting. I thought it was interesting. It’s a little philosophical, but it’s interesting.

[00:11:42] And some of it can be, um, applied like we said to personal injury. And one of the other final, the final point that she made was that about learned culture. And she said like, learned culture is in the body rhythms. And that kind of goes back to that point about the body keeping the score. Uh, for example, someone’s [00:12:00] posture, right?

[00:12:01] Someone’s gait, someone’s smile, someone’s accent. And that could be in movements. If someone’s like, for example, a dancer or they gesture a certain way, they have certain grace, they have certain elegance. The way a man or a woman walks across a room that could tell you a lot about them, that could tell you where they’re from, that they’re from, let’s say the south.

[00:12:22] Or that they’re from a certain region like Latin America because the way they strutted across the room. But if you’re in a lot of pain from like trauma, you can’t walk that way anymore. So you lose all that, all that learned culture, all those body rhythms and those non-verbal signs, the way a person.

[00:12:42] Carrie’s him or herself is very, very, um, big thing to lose. So yeah, those are just some of the thoughts from this book. So it’s almost like a short book review, but I thought some of the points are really relevant to personal injury, to accidents and, uh, can be, can be [00:13:00] made in, in a case, um, if they, if they apply of course.

[00:13:05] So let us know what you think. Um, please like and subscribe to our channel. Let us know what questions you have. We are here for you, but if you Google that author’s name, I believe her name is Elaine Scarry, s c a r r y. You could actually see, I think there’s some YouTube videos of her giving lectures.

[00:13:22] And then that book is called The Body and Pain, and she talks about how it’s, um, there’s like the unmaking, which is like when you. Pain happens to someone, they just get unmade, right? They get destroyed. And then she also talks about the second part of the book is actually making or imagining and how, uh, pain could, could something to do with creation.

[00:13:44] I haven’t finished the second part, so I can’t really comment about it yet. But, um, it’s, it’s a very interesting but very philosophical, but very thought-provoking. Okay. Thank you so much. Have a great day and we are here for you. Bye-bye.[00:14:00]

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