Malpractice

Defending Yourself Against Pain and Suffering Lawsuits

Mark Crane

Disclosures

May 09, 2011

In This Article

Introduction

How do juries put a price tag on an injured patient's pain and suffering? Whereas economic or "special" damages -- essentially past and future medical expenses and past and future earnings losses -- can be calculated with some precision, non-economic damages are the wild card in malpractice cases.

"Five different juries hearing the same case can come up with 5 different verdicts," says Thomas J. Hurney, Jr., a malpractice defense attorney with the Jackson Kelly law firm in Charleston, West Virginia. "Non-economic damages depend on intangibles other than whether the doctor breeched the standard of care, such as sympathy for the plaintiff and how the doctor comes across in court."

Juries receive little guidance about how to reach a dollar figure for this inherently subjective area. Pain and suffering awards are decided on a case-by-case, judge-by-judge basis, with few instructions to jurors except to use their common sense and life experiences and not be swayed by passion or prejudice, say malpractice attorneys. The verdicts can be totally unpredictable and are a major part of mega-million awards.

Economic damages can include lost wages and other income, medical care, custodial care, lost earnings, lost earning capacity, and funeral expenses if the injury resulted in death. Non-economic damages can include physical pain and suffering, mental distress, permanent impairment or loss of function, disfigurement, lost of the ability to enjoy life's pleasures, loss of consortium, and death.

"Pain and suffering becomes a major component when there is significant injury to the patient," says Michael J. Schoppmann, with Kern Augustine Conroy & Schoppmann of Bridgewater, New Jersey. "This is especially true when the patient survives, is of a younger age, and has an expected long life span in spite of the injury."

How much of the pain and suffering is legitimate and how much is overblown? That is a question that troubles many defense trials.

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