You may have heard of juries awarding compensation for “pain” and “suffering” in injury-related lawsuits. But what exactly do those terms mean in the context a medical malpractice case? How do you prove and calculate pain and suffering? That's what we'll cover in this article.
Pain and suffering is a term used to define the physical and mental suffering that a plaintiff endures as a result of an injury. It is a component of the plaintiff's damages. 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 the cost of medical treatment and lost income.
Think, for example, of a surgical error that caused the plaintiff to lose all or part of their jaw bone. The physical suffering would be the pain felt every time the plaintiff tried to eat, and the physical pain from any surgeries that the plaintiff underwent because of the injury.
Mental and emotional pain refers to any non-physical suffering that resulted from the incident. This includes emotional stress from any disfigurement, loss of the ability to enjoy life's pleasures, permanent impairment or loss of function, and loss of consortium. Let’s discuss a few of these categories in more detail.
Disfigurement, Permanent Loss or Loss of Function, and Loss of the Ability to Enjoy Life’s Pleasures
In the example above, emotional stress would include the plaintiff’s embarrassment or depression as a result of disfigurement. Likewise, the plaintiff would be compensated if the jury finds that the plaintiff has suffered a permanent loss of function or impairment from the jaw bone injury. The jury would also be permitted to consider the loss of ability of enjoy life’s pleasures such as eating or even kissing. Note that this requires proof of what the plaintiff did and what they enjoyed before the injury. A jury can also consider the expected length of the plaintiff’s life, lifestyle habits, and whether the plaintiff was generally healthy before the incident to determine how much to award.
Demographics also matter when trying to prove pain and suffering. A 65-year old man may not receive as high a verdict for facial disfigurement as a teenage girl or aspiring model. As you can see, this is subjective and can make jury awards very inconsistent.
Loss of Consortium
Loss of consortium refers to the impact the injury has had on the injured party’s ability to provide love, affection, companionship, or services. People often think that loss of consortium refers to the impact the injury has had on a married couple’s sexual relationship. But it’s broader than that. Many states now allow children and parents, in addition to spouses, to bring loss of consortium claims. Note that the person who would sue for loss of consortium is the spouse, parent or child of the person who was injured.
Loss of consortium usually is not awarded unless the injury is severe and permanent, such as death, paralysis or incontinence. These claims require proof that the parent/child/spousal relationship was irrevocably altered by the injury.
There is a functional as well as a sentimental component to loss of consortium claims. In the spousal context, loss of consortium often requires that intimate details of the couple’s relationship be examined and made part of the public record. It is important to be aware of that before considering whether to bring a loss of consortium claim. The sentimental component may include the impact the injury had on a married couple’s sexual relationship as well as companionship (such as if the couple used to go out dancing frequently). The functional component includes services the injured spouse used to provide (such as taking out the trash and driving the kids to school).
In many states, the couple must show that a valid marriage exists. Damages would probably be reduced if the couple divorced prior to trial. In addition, some states may allow same-sex couples to bring loss of consortium claims even in states where same-sex marriage is not recognized.
Damages from pain and suffering are considered “general damages” and are distinguishable from “special damages.” Hospital bills, loss of income, and certain out of pocket expenses are examples of special damages because a plaintiff can provide a bill, receipt, or work contract to show the money that was lost or paid. Pain and suffering, on the other hand, is not quantifiable in a precise, mathematical way.
Damages from pain and suffering are, therefore, subjective. There is no formula and certainly no standardized calculation for pain and suffering. It is the job of the jury (or the judge if there is no jury) to determine what is fair and reasonable, which they will often do based on their own life experiences. The jury will consider whether the plaintiff is credible and sympathetic. This subjectivity means that damages from pain and suffering can vary tremendously from case to case -- even if the underlying injury is the same.
To combat this, some 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 or not your state has one -- check out our State-by-State Medical Malpractice Damages Caps section.