Part VII: Injuries and Damages

Pain and Suffering

In many personal injury cases, compensation for the physical pain and emotional suffering you experienced and will continue to suffer because of another person’s negligence often constitute a significant portion of the damages you are entitled to receive. Indeed, monetary compensation for physical and psychological pain and suffering constitutes the lion’s share of many personal injury awards. Note, however, that in medical malpractice cases, awards for pain and suffering (and other “non-economic” damages) are limited to $250,000.

The amount of compensation the jury will award for pain and suffering depends upon the type and nature of the injury. For instance, a jury will award a person who has suffered serious burns over 30 percent of her body a significantly higher amount of compensation for pain and suffering than it will award a person who has suffered a typical whiplash injury. Pain and suffering is a catch-all phrase that includes such things as:

  • Past and future physical pain
  • Mental suffering
  • Loss of enjoyment of life
  • Disfigurement
  • Physical impairment
  • Inconvenience
  • Grief (except in wrongful death cases)
  • Anxiety
  • Fright
  • Humiliation
  • Discomfort
  • Fear
  • Anxiety
  • Embarrassment
  • Anguish
  • Other emotional distress the victim has suffered and will continue to suffer in the future

The Texas Court of Appeals once stated, “In a world so full of pain and suffering, it is strange that no one has perfected a gauge that will accurately measure its value.”

At the end of a personal injury trial, when giving the jury its instructions, the judge will inform the jury not to speculate and that neither emotion nor prejudice has a place in their deliberations. The judge further instructs the jury that the only award permissible in a personal injury case is one lump sum for all time, in precise, cold, hard dollars and cents. Continuing his instructions to the jury, the judge will say further that “pain and suffering,” “ridicule,” “humiliation,” “embarrassment,” and the like all shall be evaluated, and only “in terms of dollars and cents.” Then, as the jurors expectantly wait for further instructions of what is the evaluator or yardstick of the pain and suffering they are to award, the “kilowatt” of pain and suffering, they learn that the judge can give them no such yardstick because none exists. Every case must be determined on its own merits.

After telling the jury that they must return a verdict only in “dollars and cents” for pain and suffering, one judge said: “Under the head of this matter of pain with suffering and humiliation, I am unable to give you any definite rule by which you can assess damages. However, the law allows jurors to assess damages for pain and suffering and humiliation. Nobody can measure pain and suffering in damages. No one can value them particularly. If a man said to you, ‘What would you take to suffer this or that,’ usually they would tell you they would not take anything. There is no way of measuring pain and suffering definitely. But I say to you, ladies and gentlemen of the jury, it is a proper measure of damages. The only thing I can say to you about assessing damages in this kind of case for pain and suffering is that it is just a question of plain common sense. One judge has said it was just a matter of plain horse sense, and that particular statement was approved by the Supreme Court. Allow just such a sum as you think should be allowed in dollars and cents.”

Loss of enjoyment of life can be a major element of pain and suffering for which monetary compensation is available in a personal injury case. For example, assume that you’re an active man in his mid-twenties, playing basketball and tennis several times a week and running in the occasional marathon or taking part in triathlons. Because of another person’s carelessness, you suffer an injury to your right leg that, due to its severity, prevents you from engaging in the activities you used to enjoy. You are entitled to receive fair compensation for this “loss of enjoyment of life.”

In California, the victim’s lawyer cannot argue to the jury how much money they would take to trade shoes with the injured person and ask what they would charge or expect as compensation for the pain and suffering endured by the injured plaintiff if it happened to them. This is known as the “Golden Rule” argument and is considered prejudicial to the defendant.

The jury is instructed merely that they are required to award an amount for pain and suffering that is reasonable in light of the evidence admitted at the trial, and that they must not let bias, sympathy, prejudice, or public opinion influence their decision.

In one case, the plaintiff’s lawyer, during closing argument, asked the jury to assess damages from their own perspective, to act as “a personal partisan advocate for the injured party, rather than any unbiased and unprejudiced weigher of the evidence.” The appellate court found this was an improper argument, because it was essentially a plea to apply the Golden Rule standard.

However, although the law prevents the victim’s lawyer from asking the jury to put themselves in the victim’s place when the injury results in an injury that will cause the victim pain and suffering for the future, even for rest of his life, California law permits the victim’s lawyer to argue a per diem standard to determine the amount of her client’s compensation. Under the per diem rule, an amount for hourly or daily pain is multiplied by the number of hours or days of the plaintiff’s life expectancy. For instance, the victim’s attorney can argue that the injured victim is entitled to, say, $100 a day for his pain and suffering, multiplied by the plaintiff’s life expectancy. This means that a person suffering $100 per day of pain and suffering would be entitled to compensation of $36,500 per year, multiplied by the number of years of his life expectancy. Thus, if the plaintiff’s life expectancy is 10 years, the plaintiff would be allowed $365,000 for pain and suffering. If his life expectancy were 20 years, he would be allowed $730,000 and so forth.

As the California Supreme Court has stated, there is no definite standard or method of calculation prescribed by law by which to fix reasonable compensation for pain and suffering. No method is available to the jury by which it can objectively evaluate such damages, and no witness may express his subjective opinion on the matter. In a very real sense, the jury is asked to evaluate in terms of money a detriment for which monetary compensation cannot be ascertained with any demonstrable accuracy. Translating pain and suffering into dollars can, at best, be only an arbitrary allowance, and not a process of measurement, and consequently the judge can give the jury no standard to go by; the judge can only tell the jury to allow such amount as in their discretion they may consider reasonable. The chief reliance for reaching reasonable results in attempting to value suffering in terms of money must be the restraint and common sense of the jury.

The jury must impartially determine pain and suffering damages based upon evidence specific to the victim, as opposed to statistical data concerning the public at large. The only person whose pain and suffering is relevant in calculating a general damage award is the victim. How others would feel if placed in the victim’s position is irrelevant.