Pain and suffering is a key part of what are called non-economic damages, which are damages that are not capable of exact calculation -- as opposed to economic damages which include things like lost earnings and medical bills. In this article we'll discuss pain and suffering damages in the context of a medical malpractice lawsuit.
(For an overview of damages and compensation for medical malpractice, see Types of Damages and Compensation in a Medical Malpractice Case.)
There are two general types of pain and suffering: physical pain and suffering and mental pain and suffering. Physical pain and suffering has to do with a medical malpractice victim’s actual physical injuries, i.e., his/her bodily injuries. It also includes conditions like scarring, disfigurement, and permanency of the malpractice victim’s injuries.
Mental pain and suffering has to do with non-physical suffering. Mental pain and suffering includes such problems as mental anguish, emotional distress, loss of enjoyment of life, fear, anger, humiliation, anxiety, shock, or embarrassment.
It's important to note that mental pain and suffering can also lead to physical manifestations. People suffering from mental or emotional distress can experience bouts of crying, severe anger, loss of appetite, weight fluctuations, lack of energy, sexual dysfunction or loss of interest in sex, mood swings, and/or sleep disturbances.
Very severe mental pain and suffering can qualify as acute stress disorder or even post-traumatic stress disorder (PTSD). You may have thought that PTSD only affects soldiers or crime victims, but it can affect medical malpractice victims as well. Some people keep replaying all of the bad things that happened to them over and over in their head, and it can become very debilitating.
There are no guidelines for determining the value of a malpractice victim’s pain and suffering. A jury cannot look at a chart to figure out how much to award for pain and suffering. In most states, judges simply instruct juries to use their good sense, background, and experience in determining what would be a fair and reasonable figure to compensate for the plaintiff’s pain and suffering. Because juries are given so little guidance about how to calculate damages for pain and suffering, awards of pain and suffering damages can vary widely among plaintiffs with similar injuries.
You may have read about a “multiplier” in personal injury or medical malpractice cases. Using a “multiplier” means that insurance companies calculate pain and suffering as being worth some multiple of your economic damages (medical bills and lost earnings). However, the “multiplier” concept should only be viewed as an very rough estimate at best. Juries do not use multipliers when they are in the jury room trying to determine your damages, and there are many other factors that affect the outcome of a case. Some of the factors that can greatly impact the value of a plaintiff’s pain and suffering damages are the following:
Let’s look at some of these factors in more detail. You may also want to read How a Medical Malpractice Lawyer Assigns a Case "Value".
These factors all have to do with human nature. If you don’t like somebody, why would you help that person? Jurors feel the same way. If jurors don’t like someone who is going before them asking for money (i.e., a plaintiff in a malpractice case), they are not going to give that person much money. A likable plaintiff who is a good witness is going to do a lot better at trial than will an unpleasant plaintiff who is a forgetful, argumentative witness.
Consistency and credibility are very important. Plaintiffs at trial must be as consistent as reasonably possible in their statements about their treatment, their complaints of pain, and their physical limitations.
Inconsistency in one’s complaints can be a sign that the injured person is making something up. If, for example, someone with a back injury tells Doctor A one day that he/she is having pain down the left leg, tells Doctor B another day that the pain is down the right leg, and tells physical therapist C another day that he/she has never had pain down either leg, that person is going to have a hard time convincing anyone that he/she is having pain anywhere.
Further, if a jury doesn’t think that the plaintiff is credible, the jury is going to have great difficulty believing the plaintiff’s testimony about pain and suffering.
Medical malpractice cases can be complex. It can sometimes take a medical expert to understand what really happened. Yet it is a jury of non-medical people who will decide whether you win or lose your malpractice case. Your lawyer and your medical expert witness must be able to present difficult medical issues to the jury in a way that is easily understandable and that makes common sense.
All of these things and more can affect how pain and suffering is valued. You must ask your lawyer to give you his/her frank opinion about what the jury is most likely to do with your case and your evidence.
Some states have passed laws that place a limit or "cap" on the amount of damages that can be awarded to a medical malpractice plaintiff. Oftentimes, those caps apply to non-economic damages, which include pain and suffering. To find out if there is such a law in your state, check out our state chart.