How is Pain and Suffering Determined?

If you’ve been injured in a car or other accident caused by someone else, you may be wondering how much money you may be entitled to for the pain and suffering that you have endured.  In Massachusetts, New Hampshire, and Maine, courts leave it up to a jury at trial to calculate damages for pain and suffering based upon what they believe to be fair.

How, then, do juries actually determine pain and suffering damages?

The Factors Often Considered By Juries in Calculating Damages for Pain and Suffering

In my experience, juries will take into account a number of factors when making this determination. These factors can include considering the following questions:

1. How bad was the pain and suffering? Most jurors will have their own personal experiences of going through a painful event.  In determining pain and suffering damages for the plaintiff (the injured person bringing the lawsuit), they may compare the plaintiff’s injuries and suffering to a particularly painful event that they may have suffered.  For instance, if the plaintiff suffered a number of broken bones and they too have suffered broken bones, they will have some appreciation as to the element of pain involved. 

In other cases, however, jurors may not have suffered a similar injury.  Nonetheless, in these circumstances they may attempt to equate a plaintiff’s injury with a different injury or painful event that they had suffered, or perhaps even a similar injury that a family member has suffered. Based upon this “comparative” assessment, each juror for himself or herself can determine a dollar value for the pain and suffering.

2. How long did the pain and suffering last? With some injuries, such as where medical treatment can be rendered quickly, the pain and suffering may be intense for a short period, but then may diminish quickly over the next few days or weeks.  With other injuries, the opposite may be true – the pain and suffering becomes worse over time.  With some types of severe injuries (such as burn injuries), the pain and suffering can last for years. Burn injuries, for example, often require horrendously painful skin grafts and multiple surgeries. 

As a general rule, the longer that severe pain and suffering last, the higher the damages will be for pain and suffering.

3. Were there associated psychological damages? It’s important to understand that psychological damages are also recoverable in a personal injury case, as these damages too may be considered an element of “pain and suffering.”  Psychological damages can include the following: 

• Fear of imminent death. It’s difficult for most of us to comprehend what it’s like to be engaging in an ordinary aspect of life – such as driving a car – and in an instant believe that our life is about to end in a horrible and painful accident. In a catastrophic accident, such as a head-on car collision, the driver and passengers in the vehicle that is not at fault may suffer exactly this experience.   

Psychologically, it’s unclear exactly how this sudden fear of imminent death will affect a person, and it is likely that no two people will be affected the same way.  For some people, this fear and the associated imagery may haunt accident victims long after the accident, and even intense psychological treatment may not totally erase impact of these catastrophic events.

• Ongoing psychological impacts from injuries. Catastrophic injuries can result in disfigurement, scarring, amputation, paralysis, and a host of other effects. Accident victims do not get to “turn back the clock;” they are forced – against their will – to have to look in the mirror every day and see the permanent effects of their devastating injuries.  They may also have to put up with public stares and other social stigma associated with their new condition.  

The greater that the psychological impacts that have been suffered, and will continue to be suffered, the higher a verdict for pain and suffering usually will be.

Juror Deliberations

As with determining other damages in a personal injury lawsuit, ultimately, a jury must determine a dollar amount for pain and suffering.  In reaching such decision, jurors will normally discuss the aspects noted above, as well as their understanding and appreciation of the pain and suffering that may have been experience by an injury victim based upon their own life.

My Goal – Showing Jurors the Full Value of the Pain and Suffering that You Have Endured

As a personal injury attorney, my goal is to show jurors the full impact and scope of the pain and suffering that has been endured, so that a jury can determine full and fair compensation for injuries.  Often, in addition to testimony from an injured client, medical and other experts may testify, as well as family members or others who can provide first-hand testimony concerning the pain and suffering endured.

If you have been injured by someone else, please call me for a free consultation to learn about your rights to compensation.