In most medical malpractice cases, "pain and suffering" will represent a big part of the harmed patient's "non-economic" damages. These are losses that were caused by the health care provider's error, but which are not capable of exact calculation—as opposed to more straighforward "economic" damages, which include the cost of necessary medical treatment and lost income. (Get the basics on damages in a medical malpractice case.)
In this article we'll discuss what "pain and suffering" is, and how these losses are calculated.
"Pain and suffering" is sometimes divided into two types: physical and mental. Physical pain and suffering results from the medical malpractice plaintiff's actual physical harm, and can be considered the sensory manifestations of the health care provider's harmful mistake: pain and discomfort, mainly. It also includes scarring and disfigurement.
Mental pain and suffering includes emotional distress, anguish, loss of enjoyment of life, fear, anger, humiliation, anxiety, shock, sleep issues, embarrassment, and most other non-physical manifestations of the health care provider's medical negligence.
Of course, mental and physical effects are often intertwined, or difficult to distinguish from one another. For example, people suffering from emotional distress can experience bouts of crying, loss of appetite, weight fluctuations, lack of energy, sexual dysfunction, and trouble sleeping.
Learn more about how "pain and suffering" is defined.
There are no guidelines for determining the dollar value of a malpractice plaintiff's 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.
Because juries are given so little guidance about how to calculate damages for pain and suffering, these kinds of awards can vary widely among plaintiffs, even when the nature and extent of injuries is similar.
You may have heard about a “multiplier” in personal injury or medical malpractice cases. Using a “multiplier” means an insurance company calculates pain and suffering as being worth some multiple of the injured person's economic damages (medical bills and lost income). However, juries do not use multipliers when they are in the jury room trying to determine appropriate damages, and there are many other factors that can greatly impact the value of a plaintiff’s pain and suffering, including:
Let's take a closer look at a few of these factors.
These factors all have to do with human nature. If you don’t like somebody, you might not feel inclined to help that person. Jurors feel the same way. 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 medical treatment, their complaints of pain, and their physical limitations.
Inconsistency of 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 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 she has never had pain down either leg, that person is going to have a hard time convincing anyone that she is having pain anywhere.
Medical malpractice cases can be complex. It can sometimes require the detailed testimony of a medical expert to explain what really happened, and what everything means. Yet it's 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. Learn more about the challenges of winning a medical malpractice case, and why it's important to find the right medical malpractice lawyer for you and your case.