Public Health Law Map - Beta 5 - Medical and Public Health Law Site

Juries may use noneconomic damages as a way of compensating plaintiffs for items
that are not directly compensable. For example, juries know that attorneys do not
work for free, and they also recognize that the list of compensable items that
plaintiff’s counsel presents does not contain an entry for legal fees. It is widely
believed, but untested, that jurors put money for attorney’s fees in soft categories,
such as pain and emotional distress.
a) Pain and Emotional Distress
One of the most controversial damage elements is compensation for pain and
suffering. Pain is difficult to measure, and money does not reduce the pain, so the
rationale of making the plaintiff whole falls apart. Conversely, pain profoundly
disrupts the plaintiff’s life, and it would seem to be an injustice to deny any
recovery for it. Currently, all states allow compensation for pain, although some
have established monetary ceilings for allowable recoveries for pain.
Pain and suffering may be emotional or physical. Valuing these states of mind is a
speculative process. The jurors are asked to determine how much money they
would need to be paid to endure the suffering that the plaintiff must live with. More
specifically, they are asked to determine this sum with a short time unit, say, a few
dollars an hour. The objective is to have the juror accept that the plaintiff’s pain is
worth a certain small amount of money per hour or per day. It is a simple exercise
to multiply this small number by the number of units in the rest of the plaintiff’s
life and arrive at a large dollar value. (Some courts bar this approach as
prejudicial.)
Pain is highly idiosyncratic. Some medical conditions are always associated with
severe pain (burns, tic douloureux), but for most conditions, the presence and
intensity of pain are a function of the individual. Experts may testify that the
plaintiff’s condition is not usually painful, but they cannot objectively establish that
the plaintiff does not feel pain. The jurors weigh the plaintiff’s credibility, the
nature of the injury, and the medical testimony on the plaintiff’s condition and
prognosis. If the injury was not severe and there is no credible medical testimony
that there is a physiologic basis for severe pain, typically they will award little or
nothing for pain. In a medical malpractice case that involves the treatment of an
inherently painful condition, the defendant may argue that the plaintiff is entitled to
compensation only for increased pain.
As with pain, compensation for emotional distress is not readily reduced to a
monetary value. The old rule for emotional distress limited recovery to plaintiffs
who were personally in the zone of danger related to the accident. If a mother was
in the street next to her child when the child was struck by a car, the mother could
recover. If she was not threatened or injured herself, but only witnessed the
accident, she could not recover. This harsh rule has been relaxed in most states to
allow recovery in cases in which the plaintiff was not personally threatened.
Recovery is still limited to close relatives. Friends and cohabitants cannot recover
for emotional distress occasioned by injury to another. Most medical malpractice
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