‘Pain And Suffering’ And The Rule Of Law: Why Caps Are Needed

If I harm you negligently or deliberately for no reason, I can cause two different types of damage for which you can seek compensation under American tort law.

One type of damage is described by lawyers as “special”. Aside from the legal jargon, it consists of damage for which the markets provide equivalents. If you miss work because of your injury during rehab, your loss of income has a market value. Likewise, the costs of medical care that you or your insurer had to reimburse in order to cure you. Likewise, the cost of repairing the car that I damaged during my illicit behavior.

“Special” damage is economic damage; They allude to losses that are currently measurable in explicit markets. Whether you’ve lost $ 10,000 or $ 10,000,000 in income, you need to prove that you would be that much richer if you hadn’t been hurt. Hospitals and doctors can testify to their charges; Mechanics can send invoices; Employers can present the employment contract. In short, plaintiffs fulfill their obligation to prove economic damage by demonstrating two things: 1) what they actually paid or did not deserve; and 2) that this outflow or lost inflow is confirmed by the markets. The hospital can show that their bill is not twice as much as any other hospital for the same service. The body shop can show that its prices are competitive. The victim of an unlawful act who cannot prove any economic damage may not reach the jury with his claim. Similarly, the judge must override this lawless (because it is not based on evidence) part of the judgment and order that the latter (via “transfer”) in the amount actually proven.

In my opinion, special or economic damage is not an ethical problem in tort law. It should be fully compensated. While some (“eggshell skulls”) suffer much greater economic damage than others when injured, it is difficult to understand why those who are more terribly injured by an evildoer should not fully recover from that evildoer. If I drive drunk and run down Bryce Harper, I am rightly doomed to pay more lost income than if I run down a bank clerk. This is an attribute of the corrective justice that underlies tort law. Innocent victims have the right to be “healed” by evildoers who harm them. If I negligently burn down your $ 50,000 house I owe you $ 50,000, but if I burn down your million dollar house I owe you seven numbers. There is no injustice here, no unequal treatment – all innocent victims become whole, just as whole, and the rule of law is preserved. Indeed, almost no laws limit the recovery of tort for economic damage – the few that limit economic damage, I believe, are rightly criticized for denying equal protection to the most seriously injured.

A second type of damage is not measured in terms of explicit markets. “Pain and suffering” (also known as “general” harm) compensates for a victim’s psychological harm (either the pain they feel or the joy they don’t). An injured amateur violinist can no longer practice her hobby; A crippled spouse can no longer enjoy sexual relations. These mental injuries are real, not “fabricated” harm, but they do not have readily available market equivalents. In order to satisfy their burden of proof, a victim of a tort cannot quote market prices. Rather, she can show a film “Day in the Life” that illustrates her misery and ask the jury to award an amount that she considers “fair”. The careful reader has probably noticed that while a judge can overturn economic damages that go beyond the evidence, such deferral is not possible for the price of pain and suffering precisely because there are no market standards to determine their level. In other words, juries have more power and judge less power over pain and suffering than over economic damage. That’s fine if you like juries, I suppose, but it’s not fine if you feel that victims equally damaged should be equally compensated under state law.

The inability to objectively assess pain and suffering has led some states to limit this type of harm. In some states (such as California) the cap only applies to malpractice cases, while in other states (such as Maryland) pain and suffering are limited regardless of the type of wrongdoing committed by the perpetrator. A cap is better than no cap, and a general cap is more compatible with the rule of law than one restricted to medicine, I think – I find it hard to understand why a drunk driver breaks my leg with his car ought to do this owe me more money than a drunk doctor who breaks my leg with his tweezers. Other states have no limits on pain and suffering at all. This can lead to a potential for a “runaway jury” that has little to do with the rule of law. No wonder that pain and suffering today account for a little more than 50% of all crime premiums. No wonder, as the Wall Street Journal just found that the annual premiums for misconduct at a Los Angeles gynecologist are about $ 50,000 per year, compared to $ 140,000 in Chicago and $ 175,000 in Long Island. [Neither New York nor Illinois limits pain and suffering.]

The injustice at issue is illustrated by two cases of medical misconduct in Virginia that crossed my desk on the same day last week. In the first case, which was decided by a jury judgment on November 7, 2013, a 40-year-old woman gave birth to a healthy and loved baby after a failed tubal ligation and sued her gynecologist for damages. Now there is a natural “failure rate” for tube ligations of just under 2% (the tubes can reconnect on their own), so the birth was not conclusive evidence of negligence. But the mother had an expert witness who claimed that the gynecologist did not use the correct brace, so the problem of negligence was appropriate for the jury. It’s the damage that interests me here. The jury found the doctor liable and found economic damage of $ 39,000 for medical expenses (the cost of childbirth) and $ 9,000 for mom’s lost wages. Total: $ 48,000. Note that in Virginia, the cost of raising the child to adulthood is non-recoverable. However, the total award was $ 1,800,000, meaning that $ 1,752,000 was awarded in pain and suffering – for a loved and perfectly healthy baby (and a happy 6-year-old at the time of the jury’s verdict). So $ 1,752,000 can only be “pain and suffering”. It is difficult to see how the appeal judgment can be overturned when there is NO sign of suffering. As a result, no appeal proceedings were initiated and the parties came to an agreement after the judgment.

The second case was resolved on February 7, 2014. A woman with multiple allergies complained to her doctor of shortness of breath. She provided a list of her known drug allergies, was diagnosed with asthma, and was given an inhaled steroid from the doctor’s staff. Unknown to the patient, one of the main components of the drug administered was precisely one steroid to which she had a known allergy. In other words, negligence was perfectly clear. The patient had angioneurotic edema which required a visit to the emergency room. Intubation was necessary because the airway was blocked. Ten days of hospitalization followed. When the patient left the hospital, she could not swallow solid foods and could not sit back. Her voice was hoarse, her hair was falling out, and she had two surgeries to correct larynx scars and tracheal constrictions. She was unemployed for six months. She had economic damage of $ 43,000 in lost wages and $ 97,000 in medical and hospital fees for a total of $ 140,000. She agreed to a $ 627,868 settlement, including around $ 387,000 for pain and suffering. Obviously, the plaintiff’s attorney feared that he would not recover in front of the jury. otherwise she would not have been satisfied with this amount.

$ 1,752,000 in pain and suffering every day to experience the joy of a totally loved and healthy child after a potentially negligent or non-negligent procedure. $ 387,000 in pain and suffering for pain, disfigurement, two surgeries, inability to eat normally, and permanent disability from fairly obvious negligence. Two different cases, two very different outcomes – a result of the inherent blurring of “pain and suffering”. It is hard to avoid the “tort lottery” conclusion here. “Tort Lottery” and “Equal Justice Before the Law” don’t go well together.

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