PAIN AND SUFFERING DAMAGES
Attorney Michael Rehm - (800) 978-0754
A plaintiff in a personal injury action is entitled to receive damages for pain and suffering. Pain and suffering are “general,” damages; as opposed to “special” damages, which deal with economic losses. These are ordinarily the most lucrative aspect of your personal injury matter. The damages awarded include future pain and suffering damages, as well as past damages.
Pain and suffering is a term that refers to both mental suffering and the physical pain associated with an injury. It is treated as one concept, as opposed to two separate distinctions. Pain and suffering includes any physical pain endured, and all the below experienced:
12. Terror or Ordeal (See Capelouto v. Kaiser Foundation Hosipitals (1972) 7 Cal. 3d 889, 892-893)
An overall recovery for “Loss of Enjoyment of life,” can also be a part of an award of pain and suffering damages. It is important to remember that the goal of damages is to return the injured party into the same position they were in before the injury occurred. Obviously, in situations where an injury has occurred, only so much can be done. The award of pain and suffering damages attempts to accomplish this goal. Although most people would prefer their health and well-being to financial compensation, there is simply no other way to compensate the injured person. Therefore, the more serious the injury or incident, the higher the award of pain and suffering will be.
How Do You Prove Pain and Suffering?
Even the most serious of injuries requires some proof that pain and suffering occurred. This can be done in several ways. The injured party can always testify as to the pain experienced, the frequency and intensity, etc. The Doctor can always testify, family or friends can always testify as to what they witnessed in regards to the injured party's pain. Proof that the person injured sought out treatment for the pain and suffering is incredibly helpful in front of a jury and in settlement negotiations.
How Are the Amount of Damages for Pain and Suffering Determined?
Civil Code §3359 : Damages must, in all cases, be reasonable, and where an obligation of any kind appears to create a right to unconscionable and grossly oppressive damages, contrary to substantial justice, no more than reasonable damages can be recovered.
In other words, there is no set standard, other than the damages awarded for pain and suffering shall be reasonable. Specifically, the jury is told that there is no set standard and, pursuant to the Jury Instruction CACI 3905A, to determine “a reasonable amount based on the evidence and your common sense.” So, there is no complicated legal standard in place, it is simply what is reasonable. The issue then becomes how does your Personal Injury Lawyer argue what is reasonable. Certain techniques are traditionally used, although an emphasis is always placed on the lack of a real guideline. The legislature has determined that the people of the State of California can determine what is reasonable and what is not. The arguments that are traditionally used, not necessarily by Michael Rehm, but in general are:
- “Per Diem” – asking the jury to compensate for each day the suffering has and will occur. This is the most straight forward approach. The injured person does not get any days off. The injury is present daily; therefore the damages should be a reflection of this fact.
- “The Price of Pain” – on a regular basis we pay to avoid pain. Whether it is Novocain at the dentist's office to something as simple as soap/shaving cream when shaving. We spend money to avoid physical and mental discomfort. For serious pain, the price is going to be high.
- “Golden Rule” – this is like the “price of pain” argument, but it asks the jury to determine how much they would actually charge to undergo the complained of pain and suffering.
Considering the outrageous prices that the medical industry has charged for years and years, it should come as no surprise when a jury believes that a high damages award for pain and suffering is reasonable and appropriate. All the above arguments can be successful, but ultimately the jury is going to determine the amount of the pain and suffering award and the only guideline they have is that it be reasonable.