What are pain and suffering damages and how are they determined?
Every accident has its costs.
A car accident may cause damage that needs to be repaired or injuries that require costly medical treatment.
But what about the physiological pain and suffering caused by an accident?
If the goal of a personal injury lawsuit is to compensate the injured plaintiff for their losses, shouldn’t this include compensation for the pain and suffering they wouldn’t have otherwise experienced?
Fortunately, Tennessee law allows plaintiffs to recover damages for their pain and suffering.
What is pain and suffering?
Tennesseans can recover both economic and non-economic damages. Economic damages are damages that compensate the plaintiff for the monetary losses caused by an accident, including:
- Medical expenses (hospital visits, surgeries, medications)
- Lost income
- Property damage
Non-economic damages are damages that compensate the plaintiff for the non-monetary losses caused by an accident, including:
- Pain and suffering
- Emotional distress
- Loss of consortium
It’s not easy to define “pain and suffering,” but the Tennessee Court of Appeals gave it a shot:
“Pain and suffering encompasses the physical and mental discomfort caused by an injury. It includes the wide array of mental and emotional responses that accompany pain, such as anguish, distress, fear, humiliation, grief, shame, and worry.”
Tommy was admitted to the hospital and placed in a leg traction device. He was required to undergo several operations for which he was charged more than $11,000. He was also forced to miss some work, which resulted in a loss of $5,000.
Tommy was awarded damages for his monetary losses (medical expenses and lost wages).
But what about the extreme discomfort caused by undergoing multiple operations and lying in a hospital bed in a leg traction device with holes punched into his limbs?
The Shelby County Circuit Court acknowledged the “prolonged and painful nature” of Tommy’s treatment and awarded him damages for his pain and suffering.
Tennessee allows plaintiffs to recover pain and suffering damages in all types of personal injury cases, including:
Whether or not a court will award pain and suffering damages depends less on the type of personal injury case and more on the nature of the injury.
How much is your pain and suffering worth?
It’s extremely difficult to put a price tag on your pain and suffering. Unlike medical treatment, there are no bills that you can show the judge or jury to support your request for pain and suffering damages.
Due to the subjective nature of pain and suffering, judges and jurors are given wide latitude to determine the amount of pain and suffering damages to award a plaintiff. The following factors tend to influence the decision:
- Type of injury
- Type of medication
- Length of recovery
- Permanency of injury
- Strength of evidence (including medical records, photographs, and witnesses who can testify as to the impact of the injury on the plaintiff)
- Likeability of the plaintiff
- Location of the court (jurors in certain counties are more or less likely to award pain and suffering damages)
Although it’s difficult to predict pain and suffering damages, insurance companies and defense attorneys estimate a total case value by assigning pain and suffering damages a number (1 through 5) depending on the severity of the injury:
How can you improve the chances of receiving pain and suffering damages?
While much of the process for calculating damages is out of your hands, there are some important things you can do to increase your chances of recovering damages for your pain and suffering:
- Don’t hide your pain. If you’re experiencing pain due to an accident, don’t hide it from your family or medical doctors. In many personal injury cases, family members are deposed by the defendant’s attorney and asked to explain how the accident impacted the plaintiff’s life. What’s more, your doctors’ notes concerning the pain you might be experiencing during an examination may be used as evidence to support your claim.
- Keep good records. In addition to keeping copies of your medical records, it’s a good idea to keep a pain journal documenting the impact of the accident on your day-to-day life.
- Avoid participating in certain activities. Avoid participating in activities that could give the impression that you’re not experiencing pain after your accident. For instance, if the defendant’s attorney finds out that you went hiking shortly after your accident, you can bet they’ll make the jury aware of your excursion.
Does Tennessee limit the amount of pain and suffering damages you can receive?
Though there’s no limit to the amount of pain you can experience, Tennessee places a cap on non-economic damages in the amount of $750,000.
However, in cases where the plaintiff suffers “catastrophic injuries,” the $750,000 cap is increased to $1 million. Catastrophic injuries include:
- Spinal cord injuries
- Amputation of 2 hands, 2 feet, or 1 of each
- Third-degree burns over 40% or more of the body
- Wrongful death of the parent of a minor child