Modifying "Pain and Suffering" Awards: When and Why

The large amounts often awarded to injured plaintiffs for pain and suffering may seem surprising at first glance. When a baby suffers a brain injury at birth and is subsequently awarded millions of dollars for her pain and suffering, it is easy to question why an infant needs such compensation. However, pain and suffering awards are meant to compensate the injured for any damages they have suffered or will suffer. They are not easily calculated like lost wages or medical bills may be. When a child's entire future suddenly becomes limited or when an adult's life experience changes in a dramatic way due to an injury, their pain and suffering often justifies a large award, if only to signal to the negligent party the sheer magnitude of the loss of possibility that their lives once held. The frequency with which pain and suffering awards are modified, however, demonstrates how inconsistent the science of calculating these awards can be.

Calculating Pain and Suffering Awards

Juries are given the job of calculating pain and suffering awards without a great deal of guidance. However, jurors quite effectively use their collective knowledge and common sense when evaluating damages. Generally, jurors understand that they are responsible for "reasonably compensating" the injured party for his or her "non-economic losses." Factors that can influence what a jury will consider to be "reasonable" include the age of the injured party, the extent to which the injury affected, affects and will continue to affect the injured party and the type of injury suffered. Generally, injuries that impact the brain and injuries that cause great and continuing physical pain will be considered deserving of larger pain and suffering awards.

Usually juries are not made aware of what pain and suffering awards past plaintiffs have received in similar situations. Nor are juries generally provided with a concrete way to calculate these awards, though some jurisdictions will allow juries to choose a dollar amount that the injured should receive per day and then multiply that number by the injured party's expected lifespan. Given the broad instructions that juries are provided with, it is not surprising that pain and suffering award amounts are relatively unpredictable and vary greatly from jurisdiction to jurisdiction.

Modifications

There are generally three reasons why pain and suffering awards are modified after a jury has determined the original amount to be received: 1) a procedural issue indicates that the award or trial in general should be reconsidered, 2) liability caps mandate that the amount be adjusted or 3) the award is deemed so excessive that a judge may opt to lower the award through the process of remittitur. Though most modifications lower the award amount, judges will occasionally insist that the amount be reconsidered in favor of the injured party.

Procedural issues can necessitate that an award be reconsidered. For example, in 2007 a New York jury awarded $8 million for pain and suffering to an infant who suffered brain damage during her birth due to the negligence of the doctors tending to her. However, the verdict was recently overturned and an entirely new trial was ordered because the judge erroneously dismissed a juror and seated an alternate juror after deliberations had begun, which is not allowed. In this case, it was not the amount of the award that was questioned, but the entire integrity of the trial. In another recent New York case involving failure to diagnose and monitor a patient's lupus, a $2.5 million award was set aside and a new trial ordered because the jury's findings were deemed "too inconsistent" to support the award.

Awards can also be reconsidered because they are deemed "too excessive." A recent $3 million award was overturned largely because the injured party had died within 60 seconds of his injury and thus was not entitled to such a large award for such a short period of suffering. Finally, awards can be reconsidered in favor of the injured party when some aspect of his or her suffering has not been adequately addressed. When a young pregnant woman's car was struck by a New York City express bus in 1999, she was granted a substantial award for the unrelenting back pain she had suffered from the date of the accident to the date of the verdict. However, the judge deemed it unreasonable that the jury had not awarded her any compensation for her future pain and suffering and then modified the award to include this kind of compensation.

For Further Reference

The calculation of pain and suffering awards in personal injury suits is a complex process. If you have questions about what you or someone you care about could possibly be awarded in a suit, please contact an experienced personal injury attorney.

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