Frequently Asked Questions - What is Included in Pain and Suffering?
A civil lawsuit is the court-based process through which an injured party can seek to recover monetary damages. The plaintiff, the person who has initiated the lawsuit against another individual, has the burden of proof to prove his or her alleged damages. In a civil suit for personal injuries, damages can generally be broken down into either compensatory damages or punitive damages.
Compensatory damages are the most common type of damages awarded in a civil lawsuit. Compensatory damages are designed to make the plaintiff whole, or in other words, recover what the plaintiff lost due to an injury suffered as a result of the defendant’s negligence. Compensatory damages can be further broken down into economic and non-economic damages. Economic damages are typically easily quantifiable. Examples of economic damages would include past and future medical bills, lost wages, household services, loss of future earning capacity, property damage, and out-of-pocket expenses. Evidence of economic damages is often self-evident. For example, past medical bills can be presented to a jury with little or no explanation. The damages would be the total for the services provided. Out-of-pocket expenses are also generally simple to prove during trial. Receipts or billing statements would clearly depict the total of out-of-pocket expenses. Some economic damages, however, can be more difficult to precisely calculate. Loss of future earning capacity, for example, may involve complex economic calculations based on an injured person’s age, life expectancy, past earning capacity, and training or talents. A plaintiff would need to supply the fact-finder with an abundance of evidence, and perhaps economic expert testimony, to allow a jury to accurately calculate the amount of lost earning capacity.
Non-economic damages are defined by Florida statute as, “nonfinancial losses that would not have occurred but for the injury giving rise to the cause of action, including pain and suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of capacity for enjoyment of life, and other nonfinancial losses.” Unlike economic damages, non-economic damages are often harder to quantify as they are subjective and can vary between different individuals.
Punitive damage awards are far less common than compensatory damage awards. Punitive damages are awarded in rare instances to punish exceptionally egregious actions. In order to receive punitive damages, the plaintiff must prove to the jury that the defendant was personally guilty of intentional misconduct or gross negligence. Intentional misconduct is defined by Florida statute as the “defendant ha[ving] actual knowledge of the wrongfulness of the conduct and the high probability that injury to the claimant would result.” Gross negligence is also defined in the same Florida statute as the “defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.”
Florida law places no cap on compensatory damages, but the damage award must be supported by the evidence presented at trial. A judge may overturn, or remand a case for further proceedings, a compensatory damage award if the plaintiff failed to provide the jury with sufficient information to properly calculate the amount of damages. Punitive damage awards are capped by Florida law. In a personal injury case the limit for punitive damages is three times the amount of the compensatory damages or $500,000, depending on whichever is greater.
As previously mentioned, non-economic damages, including pain and suffering, can be difficult to quantify because they are subjective. For instance, how would you quantify the difference between the pain and suffering incurred as a result of a broken arm as opposed to a broken leg? If you asked 10 different people, they may give you 10 different monetary amounts they felt properly compensated an individual for each injury. A plaintiff, therefore, must present the jury with evidence to consider and the court will instruct the jury to use their best judgment when determining how to award a plaintiff damages for pain and suffering. The jury may be asked to consider a variety of factors to determine the pain and suffering damages including, the severity of the injury sustained, the age of the injured party, the future prognosis, the length of the rehabilitation, and the type of medical treatment the plaintiff received.
Pain and suffering is often divided into two separate categories, physical and mental. Physical pain and suffering generally includes both the pain and trauma associated with recovering from the physical injury, and the future pain and suffering associated with that injury and recovery. For example, if an individual suffered a catastrophic leg injury and lost the use of one of their legs, the jury would want to consider that person’s inability to perform certain physical activities in the future as a part of the pain and suffering award. Mental pain and suffering can be associated with the depression, fear, embarrassment, and other emotions that can result from a traumatic injury. Just like physical pain and suffering these emotions are subjective and people may assign a different value to the mental harm caused by an injury.
Evidence of pain and suffering can take many forms. If the plaintiff was evaluated by a mental health professional, he or she may provide testimony for pain and suffering purposes. The plaintiff themselves may wish to make a statement describing how the injury and subsequent recovery has interfered with his or her activities of daily living. Testimony may also be provided by the injured person’s friends or family to explain what they have witnessed or how the injury has impacted the family. A treating physician may also provide testimony regarding the client’s injuries and the physical limitations or difficulties they may encounter in the future.
An experienced civil trial attorney will be able to help you determine what damages you are entitled to pursue under the law. An attorney will also be able to help quantify both your economic and non-economic damages, such as pain and suffering. Perhaps most importantly, an attorney will also be able to help you gather the evidence you need to prove all of your damages to a jury so you have the best opportunity to be awarded all of the damages to which you are entitled.