Pain and suffering damages in Wisconsin & when you can sue
How to claim your compensation for pain & suffering after an accident
If you have a personal injury claim in Wisconsin, you may be entitled to damages for pain and suffering.
Pain and suffering damages are also called “non-economic damages” since it’s not as easy to assign a dollar amount (unlike to medical expenses & property damage which usually have a clear value).
For minor injuries, it may not be worth pursuing pain and suffering damages in your claim. For serious injuries from an accident that had a big impact on your life, pain and suffering damages could be very much worth fighting for.
Steve Caya is an award-winning personal injury lawyer with decades of experience. He offers free case consultations anywhere in Wisconsin so you can find out if suing for pain and suffering damages is worth it for your claim.
- Pain and suffering damages
- Pain and suffering in worker’s comp claims
- Conscious pain and suffering
- Proving pain and suffering
What is pain and suffering?
Used in a legal context, pain and suffering includes:
Physical pain and suffering – pain and discomfort from physical injuries AND the harm an injured person is likely to suffer in the future as a result of the injuries.
Mental pain and suffering – negative emotion(s) accident victims experience as a result of the physical injuries and trauma caused by the accident.
Examples of mental pain and suffering may include:
- Difficulty sleeping or insomnia
- Loss of appetite
- Anger or humiliation
- Anxiety or fear
- Sexual dysfunction
- Mood swings
- Loss of energy/loss of enjoyment of life
- Distress about disability
In severe cases, mental pain and suffering can amount to PTSD (post-traumatic stress disorder). Victims may be entitled to financial compensation to cover mental health services, lost income and expected mental pain and suffering in the future.
Survivorship claims may include damages for conscious pain and suffering, which is experienced by the decedent between the time they were injured in an accident and subsequently died.
Are emotional distress claims the same as pain and suffering?
No. Damages for pain and suffering are part of a personal injury claim.
A claim for negligent infliction of emotional distress seeks damages for emotional pain from witnessing a loved one’s experience in a serious accident. In Wisconsin, in order to have a successful outcome in an emotional distress case (assuming of course negligent conduct has been proved), the accident victim needs to have been severely injured or killed, and the person seeking damages must be a close relative who personally witnessed the accident or the immediate aftermath.
How Wisconsin law treats pain and suffering damages
Statute of limitations
In Wisconsin, claims for pain and suffering damages need to be filed within 3 years from the date of the accident: Wisconsin Legislature § 893.54.
If your claim involves a local/state government you only have 120 days to file a claim. The statute of limitations on pain and suffering claims involving medical malpractice may be different – we recommend speaking to a personal injury lawyer about your injuries to make sure you understand the time limit for your claim.
Wisconsin state law doesn’t limit the amount of damages you can be awarded for pain and suffering. But there are other statutes that can affect the size of your settlement:
- Damages for claims against the state of Wisconsin are capped at $250k
- Damages for claims against a municipality in Wisconsin are capped at $50k
- Non-economic (aka pain and suffering) damages in a medical malpractice claim are capped at $750k
How damages for pain and suffering are calculated
First of all: there’s no calculator for pain and suffering damages. The size of your settlement or award depends on the quality of legal representation you have.
Insurance companies have their own way of assigning monetary value to pain and suffering. Typically they take the total amount of your medical bills and multiply it by a number. The more serious and permanent your injuries, the bigger the number used as a multiplier.
If pain and suffering damages are awarded by a jury, the judge doesn’t give them a formula to use. Jurors get to determine what a “fair and reasonable” figure is – a fact that terrifies insurance companies.
When a personal injury attorney with a history of winning huge jury awards at trial is representing you, insurers are much more likely to increase their settlement offer (rather than risk a virtually unlimited jury award).
Steve Caya has won millions of dollars in compensation for his clients. Get the results you deserve for your personal injury claim.
Examples of pain and suffering settlements:
Collecting any damages, including compensation for pain and suffering, depends on proving someone else’s negligence caused you harm. Our guide to personal injury law in Wisconsin covers requirements for successful injury claims in more detail.
Get compensated for pain and suffering after a car accident
If you’ve been injured in a car crash or any type of accident where someone else’s negligence caused your injuries, you deserve compensation for your losses, including pain and suffering.
Pain and suffering in worker’s compensation claims
Worker’s compensation is an insurance policy carried by an employer to protect their liability to employees in the event of injury at work. It’s required by state law for most employers. [§102.03(2)]
In Wisconsin, worker’s compensation benefits do not include compensation for pain and suffering.
In certain cases there’s an opportunity to sue a third party for damages, if negligence can be proved for someone other than an employer or coworker. In those types of cases the victim may be able to pursue damages for pain and suffering. [§102.29(1)]
Third-party liability payments could affect workers’ comp benefits, so it’s important to consult an attorney before proceeding.
Conscious pain and suffering in Wisconsin survivorship claims
While wrongful death claims allow family members to sue for damages associated with the death, a survivorship claim (or survival action) seeks damages for the conscious pain and trauma the victim suffered from the moment of the accident until their passing.
Damages for conscious pain and suffering are paid to the deceased person’s estate rather than surviving family members. This is important because any compensation paid to the estate can be used to pay claims filed against the estate by creditors.
There is no cap on the amount of damages that can be awarded in a Wisconsin survivorship claim. The statute of limitations on survival actions is usually three years from the day of the accident. It could be two years if the wrongful death was caused by a motor vehicle accident.
Don’t risk running out of time – consult a pain and suffering attorney to learn how Wisconsin statutes apply to your claim.
Proving pain and suffering
Proving pain and suffering isn’t as straightforward as proving a broken bone or a totaled car. Yet providing sufficient proof of pain and suffering damages is crucial to recover fair compensation.
There are several ways pain and suffering can be proved including:
- Medical records
- Images of the injuries
- Mental health records
- Expert testimony
- Testimony from family, friends & neighbors
Evidence of disruption to the victim’s usual way of life can also be provided through photos, videos, scrapbooks and journal or blog entries. The goal is to prove the damages caused by pain and suffering and assign a value to them by showing the contrast between life before and after the accident.
Compassionate pain and suffering lawyer serving all of Wisconsin
The most important factor directly affecting the amount of your damages for pain and suffering is the caliber of personal injury lawyer fighting for your case. Steve Caya enlists all necessary experts including doctors, rehabilitation specialists, economists and others to build a strong case and see it through at trial if necessary.
Steve Caya works on a no win no fee basis and provides free initial consultations anywhere in Wisconsin. There’s no obligation, and you’ll get an honest assessment of your claim from a highly experienced pain and suffering attorney.
Contact Steve Caya’s law office online or call to schedule your consult - we'll come to you.
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