What Are Pain and Suffering Damages?

pain and suffering

Maryland law specifically permits the recovery of pain and suffering damages. Juries are instructed in every personal injury case that damages can be awarded for this intangible injury. While pain and suffering are certainly an elusive concepts, they constitute the most serious harm in any personal injury case.

Pain and suffering damages go beyond the cold and calculated economic damage, like medical bills and property damage. They are the things that cannot be calculated with extreme precision, but which form the undercurrent for all tort cases where there has been mental, physical and emotional suffering.

Maryland law requires that the jury "take his plaintiff as he finds her." Which means, If the defendant causes an automobile crash which requires three surgeries, then the victim's pain and suffering must be examined on an individual level. Someone else might not have the same amount of pain of suffering. At trial, the jury has to look at the plaintiff's specific situation. How did the injury impact the victim's life? That is the real question. Then the jury must put a dollar value on that sorrow and pain to make it even: to balance the scales so the victim receives an amount of money that balances the scales of justice.

The framework for pain and suffering damages is set out in Maryland case law, and reflected in the pattern civil jury instructions that are given to the jury before they decide what the pain and suffering damages in the case should be. These instructions are the garden variety instructions that judges use in tort lawsuits across Maryland. Depending on the circumstances of the case, they may be modified. At the core, though, these instructions describe what is allowed. The Maryland instructions tell the jury that they may consider the following factors in a tort claim:

The personal injuries sustained and their extent and duration;

  1. The effect such injuries have on the overall physical and mental health and well-being of the plaintiff;
  2. The physical pain and mental anguish suffered in the past and which with reasonable probability may be expected to be experienced in the future;
  3. The disfigurement and humiliation or embarrassment associated with such disfigurement;
  4. The medical and other expenses reasonably and necessarily incurred in the past and which with reasonable probability may be expected in the future;
  5. The loss of earnings in the past and such earnings or reduction in earning capacity which with reasonable probability may be expected in the future.

In awarding damages in this case you must itemize your verdict or award to show the amount intended for:

  1. The medical expenses incurred in the past;
  2. The medical expenses reasonably probable to be incurred in the future;
  3. The loss of earnings and/or earning capacity incurred in the past;
  4. The loss of earnings and/or earning capacity reasonably probable to be expected in the future;
  5. The "Noneconomic Damages" sustained in the past and reasonably probable to be sustained in the future. All damages which you may find for pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium, or other nonpecuniary injury are "Noneconomic Damages";
  6. Other damages.
Types of Pain & Suffering Damages

Let's break down this Maryland pattern jury instruction to see how juries really award money damages for human suffering. The components of "pain and suffering" are the following:

  • Mental health and well-being
  • Mental anguish (past and future)
  • Humiliation or embarrassment associated with disfigurement [for example, scars]
  • Noneconomic damages, including pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium, other nonpecuniary injury

In practice, Maryland lawyers should make sure that each of these items are listed on the verdict sheet that a jury fills out (for a circuit court jury trial). This gives the jury the opportunity to think about each one individually, and to assign a value (based on the evidence, and each juror's experience and discussions with other jurors) as to each component. During the direct examination of the plaintiff and the plaintiff's family, testimony should be given on each item, if it is something that can be proven.

One point not to be overlooked is physical impairment. Don Keenan and David Ball - a lawyer and a psychologist - have extensively researched these pain and suffering damages, and discovered that it is difficult for jurors to understand and to place a value on another person's pain. However, if a plaintiff's injury caused him to be unable to drive for a week, a month or a year, that is something that people can relate to because it is a more concrete example. Jurors presented with that evidence tend to give higher verdicts. It is important for trial attorneys to keep this in mind when trying to convey to a jury what really happened to their client.

For More Information
  • Is There a Formula to Compute Accident Settlement Amounts? [Learn more]
  • Putting a Number on These Cases [Learn more]
  • Maryland Cap on Non-Economic Damages [Learn more]
  • Per Diem Pain and Suffering Arguments to the Jury [Learn more]
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