One of the most common types of damages awarded in medical malpractice cases (and other personal injury cases) is pain and suffering. This may seem elusive, since it is difficult to put a dollar amount on the physical and emotional suffering that a person experiences during and after an injury. However, non-economic damages involve an effort to quantify pain and suffering, which can be compensated in addition to the victim’s medical bills, lost income, and other costs. Judges, juries, and insurers cannot apply a formula to calculate these damages. Instead, they must decide what is reasonable in a certain case, considering the evidence presented by the victim and its credibility.
Pain and suffering damages tend to be unpredictable because they are subjective. As a result, many states have imposed damages caps on awards of non-economic damages to prevent juries from awarding massive amounts out of sympathy to a plaintiff. There are certain factors that typically play a role in calculating pain and suffering. These may include whether the injury resulted in scarring, disfigurement, or a permanent disability, as well as the degree to which it prevents the victim from holding a job and its impact on the victim’s recreational pursuits and their relationships with family members.
Any permanent loss of function or impairment of a body part likely will increase a pain and suffering award substantially. If the plaintiff has suffered visible scars, they may be dealing with social anxiety or even depression as a result. This also may increase the award. If the victim is expected to live for a long time, they may receive a greater amount of damages, since the impact of the injuries will affect a substantial period of their life. Evidence about the plaintiff’s habits and lifestyle, often presented through witness testimony, can help establish the degree to which a disability or impairment affects their daily activities.
The same type of injury may result in different awards for different victims. For example, an elderly man who suffers visible scars may receive a smaller damages award than a young woman who suffers the same types of scars. This is because the jury may conclude that the scarring would have a greater impact on this type of victim, based on social stereotypes. Similarly, the loss of a victim’s use of their left hand likely will result in a greater award for a victim who is left-handed than for a victim who is right-handed.
Traditionally, loss of consortium damages arose from harm to the sexual relationship between the victim and their spouse. These damages more recently have extended to other facets of the relationship with their spouse, such as affection and companionship. Loss of consortium damages also can cover more prosaic matters, such as the assistance that a victim provided in handling household chores and family errands. Some states even allow children or parents of the victim to bring loss of consortium claims based on the harm to their relationship with the victim. These claims must be brought by the family member rather than the victim. Partners who are not married to the victim generally are not entitled to seek loss of consortium damages.
To receive loss of consortium damages. the family member generally must show a severe and lasting injury that permanently affected their relationship with the victim. Some people may refrain from bringing these claims because they are reluctant to expose the private details of their family relationships. Court proceedings are made public, so a victim and their loved ones may want to weigh this factor against the damages that they might gain from the claim.
