Doctors and nurses are people, and people make mistakes. However, negligent medical mistakes happen far too often and can utterly change a victim’s life for the worse. That is why the law allows victims of medical malpractice to get compensation for their losses, which includes damages for pain and suffering. But what exactly counts as “pain and suffering” in the legal sense, and how are compensation amounts calculated?
What Is Pain and Suffering?
Tennesseeans are legally allowed to collect both economic and non-economic damages in medical malpractice and other personal injury cases. Economic damages are easy to understand and calculate because they are direct financial losses resulting from an accident or event. They include medical bills, lost wages, and other financial losses that can be quantified using invoices and other documentation. But what about less tangible, non-economic losses?
Pain and suffering is a non-economic category of damages that includes a wide spectrum of mental, physical, and emotional discomfort. It includes things like:
- Physical pain,
- Emotional upheaval and discomfort,
- Mental anguish,
- Distress,
- Disfigurement,
- Decreased lifespan,
- Depression,
- Fear,
- Anxiety,
- Insomnia,
- Loss of companionship,
- Loss of consortium (marital relations), and
- Loss of enjoyment of life.
There are no invoices or documents that spell out the amount of these non-economic damages, but a seasoned injury legal practitioner can help determine their worth.
Example
For instance, suppose that Tina had surgery where the doctor made an error that resulted in losing part of her jaw bone. Her non-economic losses might include the physical pain she experiences every time she tries to eat. She might have to undergo additional surgeries to correct the problem, which result in further pain and discomfort. These are all physical non-economic damages that are compensable under the category of pain and suffering.
But suppose the botched procedure also disfigured Tina’s face. Now Tina is suffering from depression based on her altered appearance. Her previously active social life is now in ruins. She rarely goes on dates anymore, and the one date she had ended in tears because kissing was painful. She fears that she will never be the same and that her dreams of falling in love, getting married, and having children have evaporated. All these losses are compensable as pain and suffering that resulted from the surgeon’s errors.
Evidence Is Needed
Before we get into the method used to calculate pain and suffering damages, it is important to note that evidence of such suffering is needed. You cannot simply say that you are suffering and get compensation. In our example above, Tina would want to provide photos of her face before and after the botched surgery to show the insurance company, the lawyers, and the judge just how disfigured she now is. She would also likely want to gather witnesses that can attest to the dramatic changes in her life and demeanor since her disfigurement.
Calculating Pain and Suffering
As previously stated, non-economic damages are not nearly as easy to quantify as economic damages because there are no receipts or invoices that provide a dollar amount. Instead, insurance companies, lawyers, judges, and juries rely on a means of calculation called the “multiplier method.” This process involves adding up all the tangible economic damages in the case and then multiplying that amount by a number between 1.5 and 5. This number is called the pain and suffering multiplier. The multiplier varies according to the severity of your pain and suffering. If your pain and suffering is low, you would use a factor on the low end of the spectrum. But if your suffering is high, you would use a multiplier closer to 5, and in some extreme cases, you can even use a multiplier of 6 or 7. However, it is important to note that Tenn. Code Ann. § 29-39-102 caps non-economic damages at $750,000.
Here are some factors to help determine what multiplier you can use:
- How egregious the doctor’s negligence was;
- How severe your injury is;
- Whether your injury is temporary or permanent;
- How strong your evidence of pain and suffering is; and
- How long it will take for you to recover from your injuries.
Bear in mind that any amount arrived at is an approximation. If your lawyer looks at your case and uses a pain and suffering multiplier of 5, there is no guarantee that you will get the amount. The insurance company will demand proof that 5 is an appropriate multiplier and may reject your claim if adequate proof does not exist. At that point, you will either have to adjust your calculations to arrive at an agreed settlement amount or go to trial if you cannot reach an agreement.
Example
In Tina’s case, let’s assume that the economic damages resulting from medical procedures and lost wages come to $20,000. Her lawyer could likely make a strong case to use a multiplier of 5 if her disfigurement and resultant disability are permanent. You could make the case that she will suffer pain while eating the rest of her life and that her previously vibrant social life and marriage prospects have been greatly diminished—thereby warranting a high multiplier. So the estimated damages would be her economic losses of $20,000, multiplied by 5 for a total of $100,000 in pain and suffering damages.
Criticism of the Method
The biggest criticism of this pain and suffering multiplier method stems from the potential for inconsistent results. Theoretically, two attorneys could look at the same case and come up with two substantially different multipliers. Neither is “right” or “wrong”—the lawyers simply gave different weight to the factors and came up with different answers. So even if you think that your losses warrant a high multiplier, be ready to negotiate. You may also have to answer questions regarding how you arrived at your estimate.
Let Us Fight for You
The compassionate lawyers at Batson Nolan PLC know how much a doctor’s mistake can wreak havoc on your life. Our lawyers can look at your case, assess the facts, and help you get all the compensation that your case warrants. We know how to work with doctors and their insurance companies to get you the best results possible for your case. But don’t delay. The sooner we get started on your case, the sooner you can put this behind you and get on with your life. So call us today or contact us online to set up a free initial consultation.