Defending Yourself Against Pain and Suffering Lawsuits

Mark Crane


May 09, 2011

In This Article

What Constitutes Non-economic Damages?

What Constitutes Non-economic Damages?

Guidelines for how juries determine damages vary from state to state. There does not appear to be a complete list of all possible damages, and there is no uniform set of jury instructions. Most awards include the following:

Pain and suffering. Awards can include compensation for actual broken bones and internal injuries but also the aches, pain, limitations on activity, potential shortening of life, depression, etc. The dollar value is naturally subjective.

Mental distress. If a jury concludes that the plaintiff has a fear that death will result from an injury, it can make an award for this category.

"Hedonistic" damages. This is also called loss of ability to enjoy life's pleasures. The plaintiff might not be able to play with his children, read without getting headaches or blurry vision, go for long walks, etc. "Loss of enjoyment of sex is a factor," says Armand Leone, a radiologist/plaintiff's attorney in Glen Rock, New Jersey. "If the plaintiff can no longer achieve an erection, he can be compensated for that. Different values attach, though. A 35-year-old will likely receive a higher award than a 68-year-old." Courts are split as to whether the patient must be conscious of the loss of enjoyment to be compensated. Some states will not allow hedonistic damages when the patient is in a coma, says Michael Schoppmann.

Disfigurement. Juries can compensate for the embarrassment of scarring. They may be told to consider whether the disfigurement will be less noticeable in time and how much anguish the patient has suffered and will suffer in the future.

Damages for death. This includes both economic losses, such as loss of the deceased's earning capacity, and also the pain and suffering he or she endured prior to death. The verdict can include the loss suffered by the deceased's family, including sorrow, mental anguish, companionship, and guidance. The estate and its beneficiaries can also receive what their loved one would have gotten if he or she had not died.

Loss of consortium. This isn't just about sex. It includes services of the spouse and intangibles such as affection, society, companionship, and guidance. Consortium awards generally do not stand alone but are derivative of the injury to the patient. "It’s an unpredictable area," says Thomas Hurney. "I've tried 3 cases where juries gave awards to the plaintiff but zero for loss of consortium. Juries tend to award them in cases where there's severe impact on a spouse or children, such as the patient being paralyzed and needing lifetime care."


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