Anyone injured in a car accident may want to know how much their pain and suffering is worth. Unfortunately, there is no easy answer to this question. Generally, how much pain and suffering is worth varies from case to case and depends on how much juries have awarded in similar cases.
Unlike medical bills and income or wage loss, pain and suffering cannot be calculated with a simple mathematical formula. Nevada law leaves the amount awarded for pain and suffering up to a jury to decide.
What is Pain & Suffering?
One of the damages that the victim of a car accident or slip and fall claim can get compensated for is “pain and suffering.” This form of damages refers to the pain, discomfort, anguish, inconvenience, and emotional trauma. “Pain and suffering” damages is generally referred to as “non-economic” damages, because it is not compensating an individual for an amount of money they actually spent or lost, such as medical bills and lost wages. Rather, “non-economic” damages are less concrete and based on subjective evaluation of what an injured person had to go through because of a car accident, slip and fall, or other type of injury-producing events.
In Nevada, “non-economic” or “pain and suffering” damages also include “lost enjoyment of life.” Damages for “lost enjoyment of life” are also called “hedonic” damages. The Nevada Supreme Court explained hedonic damages as follows:
The term “hedonic” is derived from the Greek language and refers to the pleasures of life. Hedonic damages are therefore monetary remedies awarded to compensate injured persons for their noneconomic loss of life’s pleasures or the loss of enjoyment of life.
Citing another court, the Nevada Supreme Court distinguished between “pain and suffering” and “lost enjoyment of life” as follows:
An award for pain and suffering compensates the injured person for the physical discomfort and the emotional response to the sensation of pain caused by the injury itself. Separate damages are given for mental anguish where the evidence shows, for example, that the injured person suffered shock, fright, emotional upset, and/or humiliation as the result of the defendant’s negligence.
On the other hand, damages for “loss of enjoyment of life” compensate for the limitations, resulting from the defendant’s negligence, on the injured person’s ability to participate in and derive pleasure from the normal activities of daily life, or for the individual’s inability to pursue his talents, recreational interests, hobbies, or avocations.
Just because “pain and suffering” is not considered concrete does not make it less important. Often times in personal injury cases, “pain and suffering” forms the biggest or most important part of a victim’s damages. For example, an injured victim may have to endure decades of daily pain because they cannot undergo a procedure that will eliminate that pain. For that person, the medical bills may be low, but the pain and suffering award could be high. Essentially, the “pain and suffering” component of personal injury damages is about how an accident and the ensuing injuries affected someone’s life.
Who Decides The Award for Pain & Suffering?
In all cases tried before a jury, the jury is considered the fact finder. That is, the jury and not the judge gets to decide the extent of the injuries and other damages a car accident victim has suffered. Juries gets to decide the amount of medical bills the victim needs to be compensated for, along with lost income and other lost out of pocket expenses. In addition, juries gets to decide how much to award an injured victim for their pain and suffering.
When a personal injury case, like a car accident or slip and fall claim, goes to trial, a jury gets an instruction from a judge on what factors to consider. The following are sample jury instructions that may be given by judge at the end of a trial:
NEVADA JURY INSTRUCTION 5.1:
Measure of Damages
In determining the amount of losses, if any, suffered by the plaintiff as a [proximate] [legal] result of the accident in question, you will take into consideration the nature, extent and duration of the [injuries] [damage] you believe from the evidence plaintiff has sustained, and you will decide upon a sum of money sufficient to reasonably and fairly compensate plaintiff for the following items:
- The reasonable medical expenses plaintiff has necessarily incurred as a result of the [accident] [incident] [and the medical expenses which you believe the plaintiff will be reasonably certain to incur in the future as a result of the [accident] [incident]];
- Plaintiff’s loss of earnings from the date of the accident [incident] to the present [and any loss of earnings or earning capacity which you believe the plaintiff will be reasonably certain to experience in the future as a result of the injury(ies) sustained in the [accident] [incident]];
- The reasonable value of household services performed by another, which, except for the injury(ies), plaintiff would ordinarily have performed, which you believe the plaintiff incurred as a result of the injury(ies) sustained in the [accident][incident], from the date of the [accident][incident] to the present, and the loss of such services which you believe the plaintiff will be reasonably certain to experience in the future as a result of the injury(ies) sustained in the [accident][incident];
- The physical and mental pain, suffering, anguish, disability, and loss of enjoyment of life endured by the plaintiff from the date of the [accident] [incident] to the present; and
The physical and mental pain, suffering, anguish, disability, and loss of enjoyment of life which you believe plaintiff will be reasonably certain to experience in the future as a result of the [accident] [incident].
Nevada Jury Instruction 5.2:
Pain and Suffering: No Definite Standard
No fixed standard exists for deciding the amount of pain and suffering damages. Nor is the opinion of any witness required as to the amount of such reasonable compensation. You must use your judgment to decide upon a reasonable amount based on the evidence and your common sense.
How to Prove Pain & Suffering
To prove pain and suffering, one has to start with the injury. Some injuries are worse than others, and some injuries, while they seem bad at first blush, don’t entail as much pain as others. For example, a fracture or broken bone is bad, but not all fractures are equally painful. The opposite is true too. There are injuries that don’t seem bad, like a “soft tissue” injury, but can entail a lot of pain. Medical records and doctor’s testimonies help show to a jury how an injury can cause pain and limitations on an injured person’s life.
The next step is to be able to explain how much pain or problems the injury is causing the injured victim. To prove pain and suffering, the accident victim’s testimony is crucial. Because there is no objective test or measure for pain and suffering, a jury has to rely on the testimony of the accident victim as to the amount of pain and suffering he or she is going through. If the accident victim is not believable, the jury will likely award less to that victim.
To help buttress the accident victim’s testimony, it is very helpful to have the victim’s family, friends, and co-workers testify about what they have observed the victim go through. For example, some people with severe back pain can’t sit or stand for prolonged periods of time. Those around them may testify how the injured person can’t seem to find a comfortable position or has to stand up after a few minutes sitting down. Friends and family can also testify as to how the pain and other symptoms affect their injured victim’s mood and how the victim goes out less or does less activities. The essence of these testimonies is to show how an accident and the ensuing injuries affected the quality of someone’s life.
If you or a loved one are having difficulties dealing with injuries and the pain resulting from a car accident or other types of accident, the personal injury attorneys at D.R. Patti & Associates can help. In our combined 50+ years of experience, our award-winning accident lawyers have helped thousands of injured victims in Nevada to get the treatment they need and the compensation they deserve. To better serve our clients, we have offices at four different locations – Downtown Las Vegas, Summerlin, Henderson, and Reno.