One of the most controversial damage elements is compensation for pain and suffering. Pain is difficult to measure, and money does not reduce the pain, so the rationale of making the plaintiff whole falls apart. Conversely, pain profoundly disrupts the plaintiff’s life, and it would seem to be an injustice to deny any recovery for it. Currently, all states allow compensation for pain, although some have established monetary ceilings for allowable recoveries for pain.

Pain and suffering may be emotional or physical. Valuing these states of mind is a speculative process. The jurors are asked to determine how much money they would need to be paid to endure the suffering that the plaintiff must live with. More specifically, they are asked to determine this sum with a short time unit, say, a few dollars an hour. The objective is to have the juror accept that the plaintiff’s pain is worth a certain small amount of money per hour or per day. It is a simple exercise to multiply this small number by the number of units in the rest of the plaintiff’s life and arrive at a large dollar value. (Some courts bar this approach as prejudicial.)

Pain is highly idiosyncratic. Some medical conditions are always associated with severe pain (burns, tic douloureux), but for most conditions, the presence and intensity of pain are a function of the individual. Experts may testify that the plaintiff’s condition is not usually painful, but they cannot objectively establish that the plaintiff does not feel pain. The jurors weigh the plaintiff’s credibility, the nature of the injury, and the medical testimony on the plaintiff’s condition and prognosis. If the injury was not severe and there is no credible medical testimony that there is a physiologic basis for severe pain, typically they will award little or nothing for pain. In a medical malpractice case that involves the treatment of an inherently painful condition, the defendant may argue that the plaintiff is entitled to compensation only for increased pain.

As with pain, compensation for emotional distress is not readily reduced to a monetary value. The old rule for emotional distress limited recovery to plaintiffs who were personally in the zone of danger related to the accident. If a mother was in the street next to her child when the child was struck by a car, the mother could recover. If she was not threatened or injured herself, but only witnessed the accident, she could not recover. This harsh rule has been relaxed in most states to allow recovery in cases in which the plaintiff was not personally threatened. Recovery is still limited to close relatives. Friends and cohabitants cannot recover for emotional distress occasioned by injury to another. Most medical malpractice cases do not give rise to injury-related claims for emotional distress. It is an issue in cases that involve intentional actions, such as refusing treatment, or engaging in outrageous activities, such as sexually assaulting a patient.