Pain and Suffering
What Does the Term “Pain and Suffering” Mean?
If you have been harmed by someone else’s negligence and are interested in pursuing a personal injury suit, you will have the concept of damages for “pain and suffering” mentioned to you. But what exactly do we mean by the concept of pain and suffering?
Types of Recoverable Damages
You may or may not know what “damages” are. Damages are the monetary relief you seek in a personal injury suit and are intended to make you whole again, financially speaking. Damages can be economic or non-economic. Economic damages involving a direct loss of money include:
- Medical care costs, both past and future
- Damage to or loss of property
- Lost wages due to the inability to work, both past and future
- Loss of earnings potential.
Non-economic damages involve no direct loss of money; however, harm was done to the person that must be repaired. Non-economic damages can include:
- Loss of enjoyment of life
- Loss of consortium (companionship of a spouse)
- Pain and suffering.
Defining Pain and Suffering
Damages for two types of pain and suffering can be sought:
- Physical pain and suffering: any pain, discomfort, etc., that your injuries have caused you and will continue to cause you in the future, such as from a serious burn.
- Mental/emotional pain and suffering: any mental anguish, emotional distress, post-traumatic stress, depression, sleep disturbances, and other suffering that is directly related to the physical injury.
Examples of Emotional Pain and Suffering
Physical pain and suffering are easily understood. But what of emotional or psychological suffering? We have two examples:
- Suppose you were in a car crash in which you sustained severe injuries such as facial wounds that, despite plastic surgery, have changed your looks permanently. Every time you look in the mirror, you may feel angry, sad, embarrassed, depressed, and upset. Such feelings that are directly due to your terrible crash are emotional trauma, and are a good example of emotional pain and suffering.
- Imagine that you were in a work-related accident in which you suffered serious burns or an amputation. In this situation, many types of mental and emotional pain and suffering are possible. For example, you may develop post-traumatic stress disorder (PTSD) because you keep reliving the awful experience. To leave the horrible memories behind, you may need psychological therapy, possibly for a long time, in order to adjust to your new life.
How Do Juries Calculate Damages for Pain and Suffering?
Unfortunately, judges don’t provide juries with much information when it comes to calculating a fair dollar amount for pain and suffering damages. There are no charts or other guidelines. However, sometimes a “multiplier” is used as a rough guide, meaning that the economic damages are totaled and then multiplied by a number from 1 to 5 to calculate pain and suffering damages. The size of the multiplier depends on certain aspects of the case, such as the seriousness of the injury, the amount of time a full recovery is expected to take, the injury’s impact on the victim’s daily life, and the percentage of fault on the part of the negligent party.
What Can Help My Case for Pain and Suffering Damages?
It’s considered a positive point in your favor if you sought medical treatment promptly after your injury and kept detailed records of your costs and treatments. Examples of items that can help you document both your medical costs and your physical suffering are:
- All medical bills from ambulances, doctors, hospitals, labs, and other facilities, including follow-up appointments
- Prescription and over-the-counter medication receipts
- Medical records from your doctors, hospitals, and therapists
- Lab reports.
Other items which are good to have include:
- Photos of your injuries taken at various stages of healing
- Records of “missed opportunities,” such as anything you had planned for months to enjoy, such as an athletic competition for which you trained intensely, or an expensive vacation
- Evidence of your lost earnings.
You are the final factor in improving your chances of winning a pain-and-suffering award. Juries respond positively to:
- Your credibility
- Your like-ability
- Whether your testimony is consistent
- Whether your doctor’s records and other medical records support what you say.
Juries respond negatively to:
- Any pain and suffering claims they believe are exaggerated
- Any perception of lying, regardless of how inconsequential the lie may be
- Whether you have a criminal record.
We realize that the last point may seem unfair if you have turned your life around after only one mistake, but it is true that juries generally respond negatively to a criminal record.
Are There Any Caps on Pain-and-Suffering Damages?
The state of South Carolina, like many states, caps the amount that you can receive for non-economic damages:
- “Pain and suffering” damages are usually limited to $350,000.
- However, in medical malpractice cases, the amount is $350,000 per defendant, with an overall cap of $1.05 million.
- Punitive damages for pain and suffering are limited to three times the economic damages or $500,000, whichever is larger.
- Non-economic damages that involve claims against the government are capped at $300,000.
South Carolina also applies what is known as the “modified comparative negligence” rule. If the other party is determined to be 80 percent at fault, meaning that you are 20 percent at fault, any damages you recover will be reduced by the amount of your fault, which is 20 percent. Thus a $100,000 award would be reduced to $80,000. If you are more than 50 percent at fault, you cannot recover any damages.