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Can We Value Pain & Suffering?

In all but the rarest NY personal injury lawsuits, injured plaintiffs request a specific amount of compensation to cover their "pain and suffering."

These two interrelated concepts are simple to understand: we all experience physical pain to some degree, although most of us have different "tolerances," and we all consider it a hardship, difficulty, or obstacle.

Pain & Suffering In Personal Injury Lawsuits

Tired man

United States Law recognizes that injuries cause pain and pain can cause considerable suffering. Juries, and even insurance companies, do too:

Researchers at William & Mary found that 91% of all successful civil lawsuits involve awards for some type of non-economic damages, a category that includes "pain and suffering," mental anguish and other "intangible" losses.

A study in the Journal of Risk and Insurance found that awards for pain, suffering and mental anguish make up more than half of all damages paid out by liability auto insurance policies.

How Do We Value Pain?

But pain is internal. While most of us can recognize the signs of pain (a grimace, difficulty walking) from the outside, and are empathic enough to "understand" that someone else may be suffering from this pain, we can't truly feel it. And even if we could feel the pain of others in our own bodies, how would we value it?

Medical expenses are simple. We can enter your doctor's bills into evidence, and cite current market rates to prove they are competitive. This is hard data that any rational mind would accept.

If a concert pianist loses the use of her hand, she can easily prove that she was forced to miss a concert, and playing that concert would have garnered a certain amount of money. But where is the market that can value her inability to pursue her passion?

Ask yourself these questions:

These are difficult to answer, not only because they are philosophical in nature, but because they force us to translate our philosophies into objective, economic terms. This is a transition the court system has been loath to confront.

Can We Turn Feelings Into Dollars?

It turns out that we can, at least, try to determine the economic costs of intangibles like "pain," "suffering," and "psychological trauma." Juries do it everyday.

But even medical professionals find it difficult to quantify pain. The best test we have is simple self-reporting:

"How much does it hurt on a scale from 1 to 10?"

Juries, judges and insurance companies rely on similar methods to come to an adequate pain and suffering award, and it may seem arbitrary to you.

The Multiple Method

Take the total amount of your "special" damages; these are losses that you can prove with bills and receipts, like medical procedures, transportation costs, and lost wages.

Now multiply that amount by a number between one and five. For minor injuries, choose a lower number; severe injuries should be closer to five. The product is what you would demand for pain and suffering.

This is sort of an odd method. It suggests not only that victims should be compensated for their pain in addition to their hard expenses, but that whatever they get for pain should exceed their "special" damages. In effect, it says that pain is a greater, more valuable loss than all demonstrable financial losses.

Odd perhaps, but most insurance companies use multiplication to arrive at non-economic damages.

The Precedent Method

This method succeeds in finding the "market" that we mentioned earlier. Look at past jury awards for cases similar to your own. You can use (free for the first 24 hours) to search through lawsuits in your area, and by type of case.

How much are plaintiffs in similar cases awarded? If nothing else, you can use this method to determine whether or not the "going rate" for your type of injury is one you consider adequate.

"Let The Jury Decide"

While the preceding methods focused on finding objective foundations for an award, many juries ultimately go on gut instinct.

While judges usually provide jurors with detailed instructions on matters of law and logic, allowing them to adequately analyze evidence and reach a determination of liability, similar instructions are rarely extended where it comes to non-economic damages.

In a joint paper, researchers from Stanford & Harvard note that "jurors struggle with the assignment. Survey data suggests that juries often view the determination of damages - particularly the non-economic component - as more difficult than the decision about liability."

As a result of this difficulty, the jurors polled for the study reported using multiple methods to arrive at awards. Some said that they had simply accepted the plaintiff's demand as it was named in the suit. Others took the plaintiff's demand and the defendant's counter offer, and split the difference. Another juror decided that, since a plaintiff had lost out on one year of work, she should be awarded no more than the median annual salary.

Opposing Pain & Suffering: Adding Insult To Injury?

Many legal scholars describe pain and suffering as a "will o' the whisp." In their minds, pain cannot be proved and therefore should not enter the legal domain. Further, it is a contradiction in terms to "provide monetary compensation for an injury that is intangible in monetary terms."

There is no doubt that the "pain and suffering" component of a civil lawsuit's economic damages is ripe for fraudulent claims. If a plaintiff cannot prove that I feel pain, then a defendant cannot disprove it, either. The case becomes rhetorical: whichever party argues more effectively, whether or not their argument aligns with the facts, can carry the day.

Some lawsuits are actually based entirely on a victim's "pain and suffering." Think of a child who watches her father violently assaulted. While the girl's body will not bear scars, she has suffered great trauma. I think most reasonable people would agree that she at least has the right to pursue compensation for her injuries, as intangible as they may be.

This is a big problem for many lawyers and judges. One assumption is that allowing these kinds of claims would place a higher burden on the court system. If four different people witnessed the attack, couldn't they all file their own lawsuits?

The American Tort Reform Association (ATRA) states the difficulty of non-economic damages clearly:

"These damages involve no direct economic loss and have no precise value. It is very difficult for juries to assign a dollar value to these losses, given the minimal guidance they customarily receive from the court. As a result, these awards tend to be erratic and, because of the highly charged environment of personal injury trials, excessive."

An Emotional Decision

The ATRA has struck on something crucial here, in calling personal injury lawsuits "highly charged."

We can see this clearly in comparing the amount of "non-economic" damages awarded by judges to those awarded by juries. Reviewing over 85,000 personal injury cases, economists Eric Helland and Alexander Tabarrok found that:

Juries award upwards of 322% more total damages than judges do. Doubtless, much of this compensation is intended for "pain and suffering." Why?

Affirming a plaintiff's pain and suffering is an act of the imagination; we have to project ourselves into their situation, and ask "how would I feel if that happened to me?" It becomes, in a very real sense, an emotional issue.

But judges aren't likely to do that. By and large, legal professionals have been taught to banish emotional considerations from their thought. Law is law, fact is a fact, and that, generally, is enough to decide a case.

Limiting Non-Economic Damages

With this problem of emotion in mind, some States have capped damages for "pain and suffering" to prohibit these "excessive" awards:

In all, 30 States in the Union have limited pain and suffering damages in some way. New York is not among them.

An Argument For Pain & Suffering

Victims' rights advocates usually oppose these efforts to limit non-economic damages. Here are some of the more convincing arguments in favor of "pain and suffering":

Where Do Damages Actually Go?

When juries award compensation to plaintiffs for specific medical expenses, the money doesn't actually go to the victim. In most courts, it's automatically disbursed to the doctors who provided treatment.

For some, this doesn't "feel right." In effect, a judgment is compensating the medical industry, rather than an injured plaintiff.

Are We Compensating Only The Wealthy?

Beyond medical expenses, the bulk of purely economic damages compensates victims for their lost wages. But these awards are in proportion to what a victim would have made had they not been hurt.

Necessarily, people with larger salaries, and cushier jobs, will be awarded more than low-wage workers, even if their injuries are substantially the same.

Are We Addressing The Real Problem?

If we only compensate victims for their financial losses, we're only acknowledging a portion of their trauma. The effects of an injury go far beyond medical procedures and time away from work.

What about missing out on hobbies, friends and family, the true joys in life? Non-economic damages are recognition than an injury can have wide-ranging, "invisible" consequences.

The Center for Justice & Democracy, a research institution at New York Law School, describes these arguments in favor of "pain and suffering" in more detail here.

For more information on other personal injury cases, visit our article on Quadriplegia.

Laurence P. Banville
Date Published: February 18, 2015
Laurence P. Banville is the managing partner of Banville Law. As an experienced personal injury attorney, Mr. Banville helps clients recover compensation from those responsible for his clients' injuries. Our firm is located in New York City, serving clients from the five boroughs: Manhattan, Brooklyn, Queens, The Bronx, and Staten Island.
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