You may have heard of the concept of "pain and suffering" in personal injury-related insurance claims and lawsuits. But what exactly does the concept mean in the context of a medical malpractice case? How do you prove that a health provider's error caused you "pain and suffering," and how is this kind of harm calculated in terms of a dollar amount? Let's dive in and answer these questions and more.
First things first. In the eyes of the law, "pain and suffering" is a broad term that's used to define a whole host of negative physical and mental effects that an injured person might endure as a result of the at-fault person's wrongdoing. Pain and suffering is one component of the injured person's "damages," which means compensable harm.
So, in a medical malpractice case, the defendant health care provider can be liable for the harmed patient's pain and suffering, in additional to other damages like:
Learn more about the basics of "pain and suffering" in injury cases.
To illustrate how pain and suffering comes into play when a health care provider commits malpractice, let's say a surgical error causes a patient to lose part of their jaw bone. On top of the cost of additional medical care and other more quantifiable harm that might be compensated if this patient files a medical malpractice lawsuit, the "pain and suffering" component of their damages would include:
If the medical malpractice case goes to trial and the jury finds that the plaintiff has suffered a permanent loss of function or impairment from the jaw bone injury, additional pain and suffering damages will likely be awarded.
The jury would also be permitted to consider the plaintiff's loss of ability of enjoy life's pleasures, such as eating or even kissing. Note that this requires proof of what the plaintiff's life was like before the injury.
In assessing how much pain and suffering compensation might be appropriate, a jury can also consider the plaintiff's:
Demographics matter when trying to place a dollar value on an injured person's pain and suffering. A 65-year old man probably wouldn't receive as high a verdict for facial disfigurement as a twenty year-old might, for example.
The definition varies from state to state, but "loss of consortium" typically refers to the impact the injury has had on the injured person's ability to provide and receive love, affection, companionship, or services. Loss of consortium might be a part of a medical malpractice plaintiff's "pain and suffering" damages, or it might be a distinct claim brought by the plaintiff's partner or family member.
Loss of consortium often encompasses the impact the injury has had on a married plaintiff's sexual relationship, but the concept is broader than that. Many states now consider the injured person's relationship with children, parents, and spouses when assessing loss of consortium.
It's important to note that loss of consortium usually isn't awarded unless the plaintiff's injuries are severe and permanent.
Finally, these claims require proof that the parent/child/spousal relationship was irrevocably altered by the injury. In the spousal context, recovering compensation for loss of consortium often requires that intimate details of the couple's relationship be examined and made part of the public record. It's important to be aware of that before considering whether to bring a loss of consortium claim.
Damages from pain and suffering are considered "general damages" and are distinguishable from "special damages," which include quantifiable things like medical bills and lost income which can be proven by bills, receipts, or other documentation.
General damages like pain and suffering on the other hand, are not quantifiable in any precise, mathematical way. They're subjective. There's no formula and certainly no standardized calculation for pain and suffering. It's the job of the jury (or the judge if there's no jury) to determine what's fair and reasonable, which they will often do by considering:
This subjectivity means that damages from pain and suffering can vary tremendously from case to case—even if the underlying injury is the same. For this reason (and in part to control the costs of health care), many states have put a "cap" on the amount a plaintiff can receive for general damages in a medical malpractice case. To learn more about these caps—and whether your state has one—check out our State-by-State Medical Malpractice Damages Caps section.
If you've been harmed by any kind of medical treatment error, it's important to understand what "pain and suffering" is and how it might affect any lawsuit you decide to file against the health care provider who harmed you. But there's a lot more to consider at the outset. For starters, you can learn more about:
If you're convinced that you have a valid medical malpractice case, the first thing to know is that this isn't the kind of legal action you want to try handling on your own. Injured plaintiffs often need to comply with special rules when filing a medical malpractice lawsuit. And proving your case against a well-insured and well-defended health care provider will likely require an expert medical witness or two.
In short, medical malpractice lawsuits are a real challenge, but they're also familiar ground for an experienced legal professional. Learn more about how a medical malpractice lawyer can make a difference in your case.