PAIN AND SUFFERING- WHAT IS IT AND WHY DOES THE LAW DEMAND SUCH DAMAGES BE “AWARDED”?
When I conduct focus groups on cases or when I am picking a jury, one of the “hot button topics” is always pain and suffering. Pain and suffering damages are often looked at with a jaundiced eye by people. Most people have no problem with medical bills or lost wages. Those are tangible items of damages that can be easily calculated. But pain and suffering can be a different story.
Pain and suffering damages are just that- damages for the pain and suffering that a person suffers (past) and will suffer (future) as a result of the injuries that were unnaturally thrust into their lives through no fault of their own. This includes, among possible other factors, physical pain, emotional and mental pain such as anxiety, stress, depression inconvenience, fear, and embarrassment. It includes the past and future loss of enjoyment of life or the loss of our ability to enjoy the things we did before the crash. That could be the total loss of ability to perform our hobbies or the loss of our ability to get as much enjoyment out of them as we once did. Maybe you can still hike at Red Rock or Mt. Charleston or spend time on the beach in San Diego. But you don’t enjoy it as much because you are in pain. You can still take that road trip to Phoenix for Thanksgiving to visit your sister, but you know you are going to pay for it the next day (and the four-hour drive is now a six-hour drive because you have to stop to get out and stretch). It may seem like small thing to not be able to sit pain free on a Sunday and watch your favorite team play. It isn’t to the person who has lost that ability to sit pain free for a few hours before heading back to work the next day. Those small treasures are meaningful. It is what makes life fun in the midst of the pressure and stresses of our everyday lives.
The law demands that these harms and losses be reimbursed. There is no other way to do this than an “award” of money. I hate that term by the way, “award.” People who have been injured through no fault of their own have not won an “award.” They have had their health and freedom taken from them. It isn’t a fair trade and it isn’t a trade anyone would freely enter into. Look at it this way: someone comes up to you and asks “how much money would I have to give you to be injured in crash, have a disc taken out of your spine, have some amount of pain for the rest of your life, and lose at least some of the ability to enjoy the things you love to do. You will also have anxiety and stress worrying if your body will break down faster as you age because of your injuries and whether or not you will loss independence, mobility, and be a burden on your spouse, children or friends” What would you say that person? My guess is it might start with an F and ends in “off.” But that is the situation people who are hurt in a crash are in. The only difference is they didn’t have a choice. They have had what might be the most important thing they have that is unique to them, their health, taken from them through no choice of their own.
The value of pain and suffering will depend on the significance of the pain and the losses that are suffered. Are there cases where pain and suffering verdicts of $1,000,000 or more are justified? You bet. Is that most cases? Of course not. But health has value and when it is taken from us the only remedy for that is money. Most people, if it was an option, would ask the judge to take out a magic wand and take them back in time to moments before the crash and then place a spell on the Defendant so he or she doesn’t cause the collision or properly cleans up the spill in Aisle 3. But until time travel is an option, this is the only way we must try and make up for the harms and losses that are suffered by innocent victims.