October 29, 2016

By: Jonathan J. Russell, Esq.

Are you entitled to compensation for “pain and suffering” if you have been injured due to someone else’s negligence? At one time, the answer to this question was clearly “yes.” However, an expensive campaign of misinformation waged by so-called “tort reformers” has created a climate of public ignorance and fear about this issue. As a result, many jurors mistakenly believe that they should not award money for “pain and suffering,” regardless of how severe that pain and suffering may be.

Sadly, this trend runs contrary to civilization’s core principles of justice, equity and fairness developed by many cultures over thousands of years.

Early cultures used retaliation as virtually the sole means of righting wrongs. Hebraic law, like other ancient codes, required an “eye for an eye.” Retaliation satisfied the victim’s psychological need for vengeance, but did little to restore what he lost. Gradually, however, cultures added an alternate basis of justice — compensation, or the payment of money, as recompense for wrongful injury. Retaliatory justice gradually evolved into compensatory justice.

The Romans established a complex system of compensatory payments for injuries inflicted by a wrongdoer on an innocent victim. The amount of compensation was calibrated based on various factors that indirectly accounted for the degree of pain caused by the injury. For example, the victim of a broken bone was entitled to a payment equal to a third of a year’s salary. Lesser injuries required lesser payments. A Roman who maimed another was required to “buy his peace.” Failing that, the wrongdoer was subject to “retaliation in kind.”

Thankfully, our society has abandoned “retaliation” as a means of righting wrongs. Compensation is now the exclusive civil remedy for negligence. A court awards an amount of money deemed necessary for the wrongdoer to “buy the peace” of the injured party.

The “scales of justice,” displayed in many courthouses, illustrate how an individual injured by another’s negligence is compensated. Before being injured, the victim’s “scales” were in balance; he or she was in a state of equilibrium, or wholeness. But the wrongdoer, in causing the injury, took something of value from one scale, thus disrupting that balance and the victim’s wholeness. In order to “buy peace,” the wrongdoer must deposit money into the depleted scale in an amount equivalent to that which was taken. Only then will equilibrium, or wholeness, be restored.

Our tendency to equate money with the cost of a tangible item complicates the process of assigning a dollar amount for “pain and suffering.” We can readily assign a “cost,” and thus an amount of money, to unpaid medical expenses, lost wages and other out-of-pocket expenses incurred by an accident victim. It is harder to determine the “cost” of an intangible such as “pain and suffering.”

Some believe that the value of pain and suffering should be a fixed multiple of the amount of the victim’s medical bills and wage loss. However, due to skyrocketing medical costs and other factors, the correlation between the tangible and intangible losses resulting from an injury fluctuates unpredictably. Thus, a simple multiple approach to quantifying pain and suffering seems infeasible.

While “pain and suffering” is intangible and difficult to qualify, it is veryreal and involves a real loss. Accident victims know this; they learn it the hard way.

Our American legal system has always recognized the validity and compensability of “pain and suffering.” Standard civil jury instructions define pain and suffering as “physical pain, mental anguish, discomfort, inconvenience and distress” and direct the jury to award an amount of money that will compensate the victim of negligence for such losses past, present and future. Courts have found that “the loss of well-being is as much a loss as an amputation,” and “pain and suffering, while existing, can be as much a disability as crippling, rupture or dismemberment.” The jury has a duty to “affix monetarily the responsibility of the person or legal entity which broke nature’s harmony.”

Pain and suffering must be compensated by money to restore “nature’s harmony.” The amount of money must be sufficient to bring the scales of justice back into balance. Notwithstanding the disinformation campaign that has been waged to discredit “pain and suffering” awards, they are clearly preferable to the ancient alternative — retaliation — or the injustice of no remedy at all.

At Drake, Hileman & Davis, we have been winning cases for your neighbors for more than 30 years. If you have sustained injuries that caused you “pain and suffering” and want to bring the scales of your life back into balance, contact us directly for your free case analysis and evaluation.