I have been talking a lot about personal injury pain and suffering over the past week. This is a topic that generates much debate in our society and which has for the most part become a dirty phrase in our lexicon ever since the tort reform debate started.
During trial last week, the jury on the case I was trying had to determine whether my client was entitled to pain and suffering damages in his personal injury claim. First, I would like to point out that “entitled” is the word used in our pattern jury instructions but is a word I have a fundamental disagreement with in these instances. The jury issue, which is phrased typically as “How much is Plaintiff entitled to receive for personal injury?” should really read, “How much compensation should the Defendant be required to return to Plaintiff for personal injury?” A jury “award” isn’t appropriate either. It’s a verdict. Personal injury damages, whether for medical expenses, lost wages, pain and suffering, or some other item of damages are designed to restore the Plaintiff to where they were before the Defendant’s wrongful actions. The money is designed to make the Plaintiff whole again, not to provide them with profit or a lottery windfall (for further discussion on what the point of personal injury damages is, see my article Thinking Caps).
In addition to pain and suffering being talked about in the courtroom this past week, I’ve been talking a lot about it with clients, prospective clients and I’ve even seen numerous questions posted on AVVO regarding it. The common question being asked is: How much is my pain and suffering worth?
If you Google the issue (which may be why you’re reading this right now), you’ll see there are quite a lot of opinions out there on how you arrive at pain and suffering amounts for your personal injury case. Some attempt to attach a mathematical formula to it, saying that you should multiple your medical bills by two or three. Thus, under this suggestion, if you had medical bills of $10,000.00 then your pain and suffering would be worth $20,000.00 or $30,000.00. These attempts to place formulas on personal injury are fallible, however. Assume that $10,000.00 was for largely diagnostic studies (CT Scans, MRIs, etc.) at the emergency room on just the day of the collision? If the person only treated once and then were fine after that, would that much in pain and suffering be fair compensation? I venture to say many jurors may say it is more than fair. In fact, it is too much.
Assume that the person only had $5,000.00 in medical bills. But, these medical bills were incurred due to a pit bull attack that left the 7 year old Plaintiff with a permanent scar down the right side of her face. She had to undergo a skin graft and will be left with a constant, highly visible and daily reminder of the attack. Her classmates ridcule her for her scars and make fun of her on a daily basis. She cries at night because of all the teasing. This would not have happened if the owner had simply kept the pit bull, who has attacked others before, on a leash or behind a fence. Is two or three times the medical bills fair compensation in this case? Maybe, maybe not. I venture to say many jurors may say that it is not.
The bottom line is there is no mathematical formula you can utilize to determine what your pain and suffering may be worth. The North Carolina Pattern Jury Instruction regarding pain and suffering damages reads as follows:
“Damages for personal injury also include fair compensation for actual past physical pain and mental suffering experienced by the plaintiff as a proximate result of the negligence of the defendant. There is no fixed formula for placing a value on the physical pain and mental suffering. You will determine what is fair compensation by applying logic and common sense to the evidence.” (emphasis added)
Your pain and suffering is ultimately worth what a jury considers it to be worth, if anything at all. All an attorney can do is give you their best educated hypothesis on what the case could potentially be worth as there are never any guarantees when it comes to taking your case to court. This is why it’s important to ensure that you have experienced and knowledgeable attorneys representing you, as a large variety of factors go into determining what this potential amount may be.
Disclaimer: The views of the author are his own. Nothing in this post should be construed to convey any specific legal advice upon any specific individual.