Damages and Why You’ll Never Hear Me Say “Pain and Suffering”
South Carolina injury attorneys often talk about damages. These discussions take place with clients, during negotiations with the defendant’s attorney, and in front of juries. So what are damages? Very simply, they are the measure of a person’s losses due to another’s wrongdoing. Damages are far more than pain and suffering.
Damages include past and future medical expenses, lost wages, and diminished earning capacity. These are examples of monetary damages. In non-lawyer speak, medical bills and lost income are damages directly related to your bank account. That is why we call them monetary or economic damages.
South Carolinians who have been injured due to another’s negligence or intentional wrongdoing, may also be allowed to recover non-economic damages. Though pain and suffering is a commonly used term for these damages, in my job as a Columbia, SC personal injury lawyer, I never use this phrase when speaking with clients, insurance adjusters, or defense attorneys. Pain and suffering is too narrow and too shallow of an explanation for what many personal injury clients experience after their accident. It’s a lazy term that juries have been taught to listen for, and if heard, to believe someone is milking the system.
Physical pain is real. Many of my clients live with it, and will be forced to bear it the rest of their lives. However, physical pain alone rarely increases a case’s value without substantial medical evidence. For this reason, we seek to present doctor’s testimony and medical records that establish a percentage of permanent impairment before ever mentioning physical pain. Put simply, without the medical evidence it’s the client’s word against decades of bias toward personal injury clients; bias that was purchased and created by the insurance industry in their attempt to discredit plaintiffs and increase profits.
Suffering means too many things to too many people to have real value in a legal case. In contrast, most jurors can relate to reliving a moment over and over in their heads. Jurors can also imagine what it must be like to have the ability to walk at 9:34 a.m. on a Saturday morning, and by 9:35, to never be able to walk again. Therefore, instead of using the word suffering, I focus on my personal injury clients’ lost enjoyment of life as well as their mental anguish. Does a former factory worker suffer every time her own child has to lift her into a wheelchair? Does a nineteen year-old suffer each time he looks in the mirror and sees the facial scars left by a drunk driver? Of course they do, but to most effectively represent such victims, we ask that damages be awarded for lost enjoyment of life, mental anguish, permanent impairment, non-economic damages other than pain and suffering.
All of the damages I’ve discussed thus far are collectively referred to as actual damages. They are the actual losses that a client sustained. In cases where the defendant’s actions are reckless, willful or wanton (exp. drunk driving, nursing home abuse, sexual exploitation) punitive damages may be awarded. Despite what you hear in the media, punitive damages are rare. They are designed to punish bad behavior and to prevent it in the future. Punitive damages also lend invaluable protection to consumers. Without punitive damages, or in states where a cap on punitive damages exists, large corporations may simply calculate how much they stand to lose if sued, weigh it against the cost of making a product safe for consumers, then pick the cheaper alternative. You can thank the South Carolina legislature for passing a 2011 law that caps punitive damages.