Can you sue for pain and suffering in small claims court?

UPDATED: Sep 13, 2011

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Can you sue for pain and suffering in small claims court?

I took my 2 year old son to urgent care because he was running a fever and the doctor was trying to look into his ear for an infection and found that he had ear wax that was blocking his eardrum so she took an ear curette and trying to remove the ear wax and punctured his ear drum. She did not tell me she punctured it she only told me she scraped it and it would bleed a little. His ear bled all night and I took him to his regular doctor the next day and found that she had punctured it. His ear bled for 4 days. Can I sue for pain and suffering in small claims court?

Asked on September 13, 2011 under Personal Injury, Texas


S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Although you could recover compensation for pain and suffering in Small Claims Court, it would NOT be advisable to file in that court because the amount you can recover in Small Claims Court may or may not be sufficient in this case as compensation for pain and suffering.  If a lawsuit is filed in which you are seeking compensation for your son's pain and suffering, it would be advisable to file the lawsuit in a higher court.

Prior to filing a lawsuit in this case, you should obtain your son's medical bills and medical reports from Urgent Care and also from the second doctor (your son's regular doctor).  Compensation for the medical bills is straight reimbursement.  The medical reports will document the nature and extent of your son's injury and will be used to determine compensation for pain and suffering.  Compensation for pain and suffering is an amount in addition to the medical bill.  The medical report from your son's regular doctor will provide evidence of your son's punctured eardrum which is evidence of malpractice (negligence) by Urgent Care.

It may be possible to settle the case with the insurance carrier for Urgent Care and  the insurance carrier for the doctor.  If the doctor is an employee of Urgent Care, then Urgent Care is liable for the negligence of its employee which occurred in the course and scope of employment.  If the doctor is NOT an employee of Urgent Care, but is an independent contractor, then Urgent Care is not liable for the negligence of an independent contractor.  In the case of an independent contractor, your claim would be against the doctor. 

It would be advisable to file your son's personal injury claim with the insurance carriers of both Urgent Care and the doctor.  Your son's personal injury claim will consist of the medical bills  and medical reports.  If you are dissatisfied with settlement offers from the insurance carriers of both the doctor and Urgent Care (since at this point the doctor's status as an employee or independent contractor is unknown), file the lawsuit for negligence on behalf of your son.  The lawsuit should name both Urgent Care and the doctor as defendants. If the case is settled with both parties, NO lawsuit is filed.   If the case is settled with one party, then only the remaining party is named as a defendant in the lawsuit.  You will need to be appointed guardian ad litem in order to file a lawsuit on behalf of your son since he is a minor.  The lawsuit must be filed prior to the expiration of the applicable statute of limitations or your son will lose his rights forever in the matter.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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