Proving Pain and Suffering in Texas
Attorney Doug Goyen is a Dallas auto accident injury attorney who has handled thousands of personal injury cases and recovered millions of dollars in settlements and judgments. Attorney Doug Goyen’s prior experience as an injury claims adjuster for several years before becoming an attorney provides him with the perspective needed to present cases to insurers in the most effective manner for the best representation of his injury clients. Contact us at (972) 599 4100.
For those looking for the value of their injury claim, there are numerous ways to assess the worth of pain and suffering. Those opposed to personal injury cases, such as big businesses and the insurance industry, have worked hard to persuade people that “pain and suffering” has no monetary value. Those who have bought into this line of thinking believe that it is simply extra money that serves no purpose. A personal injury lawyer must often go through a very careful jury selection process to ensure that people who have already made up their minds against certain issues, such as pain and suffering, are unable to taint the outcome of a trial, regardless of the individual facts of the case.
Unfortunately, people who hold these beliefs frequently fail to consider the true cost of pain and suffering.
Medicine itself demonstrates the economic perspective on the value of “pain and suffering.” When a dentist drills a tooth, he may charge nearly the same amount for a pain reliever shot. Every day, we spend untold amounts of money to alleviate headaches and other aches and pains. You would never consider surgery without an anesthetic, and we all know how much an anesthesiologist would charge and how much anesthetic would cost. In the real world, pain has a monetary value that is recognized in money transactions. Each jurisdiction, and each jury, has a different perspective on the worth of pain and suffering. A good personal injury lawyer should be familiar with the value of injury claims in their area due to their work in the area and the fact that they live in the community and will have some idea of the common perceptions of certain types of cases and injuries in the area.
The next time someone tells you that there is no monetary value to “pain and suffering,” tell them that the next time they have surgery, they should just skip the anesthesia and other painkilling drugs because it is too expensive, and there is no value in them avoiding any pain and suffering. Why should insurance pay to avoid pain and suffering by paying for anesthesia or pain medication if they don’t believe it has any value? This is a quick way to show that there is value in avoiding pain and suffering, and at least one way to value pain and suffering is relative to the cost of avoiding it. Even the most adamant opponents of paying for pain and suffering are usually only so when it comes to paying for other people’s pain and suffering, not their own.
These methods of assessing pain and suffering are not exclusive, but rather serve as guidelines for how they can be assessed. There is no set formula, and if a jury believes someone has suffered pain and suffering, they can award anything they want, ranging from $1 to millions of dollars in the right case.
A Cost-Benefit Analysis of Pain and Suffering: To put it another way, the value of avoiding pain. How much is society willing to pay to avoid pain? How much money is spent each year on pain medications in order to avoid feeling pain? What about taking anesthetics or pain relievers when a dentist drills a hole in your tooth? When a surgeon is performing surgery, for example. How much do we pay for the anesthesia that is supposed to keep us from feeling pain? As previously stated, we frequently pay roughly the same amount for anesthesia as we do for the medical procedure itself. Avoiding pain has a real and measurable value.
Pain and Suffering in Religion: God created the universe. God also built hell. The ultimate punishment in Hell is not death, but rather pain and suffering. Even in our own religions, pain is regarded as the ultimate punishment. As a result, when someone is wrongfully inflicted with pain and suffering, there is a genuine need to compensate that person.
The US Constitution on pain and suffering states that our government may not inflict cruel and unusual punishment. We can impose a death sentence in our country, but we cannot impose a sentence that causes a person pain.
The value of avoiding pain and suffering cannot be overstated. When a person is wrongfully inflicted with pain, it is justice that the person is compensated; our society recognizes this economically, religiously, and constitutionally. There is a monetary value to pain and suffering, as well as a monetary value to not having pain inflicted upon you.
The most common question in a personal injury case is “what is the value of the pain and suffering?” It’s an excellent question. In Texas, there is no set formula for determining this. You must consider each case on its own facts to determine what a fair amount would be for that specific case and injury, as well as how much pain and suffering was caused by that injury. The law and what evidence is admissible can help guide what to look at when attempting to value someone’s pain and suffering in a personal injury case or claim.THE LAW OF PAIN AND SUFFERING IN TEXAS
Texas courts have ruled that a jury can award fair compensation for physical pain based on their common sense and sense of justice. Pipgras v. Hart, 832 S.W.2d 360, (Tex. App.—Fort Worth 1992, writ denied). The amount for reasonable compensation for physical pain is not to be determined by a formula, but rather at the discretion of the jury. This element of damage is sometimes referred to as “physical suffering” or “pain and suffering,” but it is usually referred to as “physical pain” when presented to a jury. As a jury submission, physical pain is frequently combined with mental anguish. So often, you’ll hear the phrase “physical pain and mental anguish” used as a single submission for jury compensation.
Pain and Suffering is Recoverable. Physical pain is a proper item of recovery, and the law recognizes that it is only susceptible to approximation in monetary value, with the jury arriving at some fair compensation based on their common knowledge and sense of justice. Pipgras v. Hart, 832 S.W.2d 360, (Tex. App.-Fort Worth 1992, writ denied).
No Set Formula. The amount of damages that would reasonably compensate for “pain” is not and cannot be determined by a set formula, but rather is at the discretion of the jury. Loyd Elec. Co. v. Millett, 767 S.W.2d 476 (Tex. App.-San Antonio 1989, no writ); Ramirez v. Fifth Club, Inc., 144 S.W.3d 574 (Tex. App.-Austin 2004, pet. filed); Rehab. Facility at Austin, Inc. v. Cooper, 962 S.W.2d 151 (Tex. App.-Austin 1998, no pet.); Green v. Meadows, 527 S.W.2d 496 (Tex. Civ. App.-Houston [1st Dist.] 1975, writ ref’d n.r.e.).
Physical Pain and Physical Suffering are the same as Pain and Suffering. This type of damage is sometimes referred to as “physical suffering,” but “physical pain” is the more commonly used term for jury submission purposes.
Physical Pain and Mental Anguish often submitted together in court. Physical pain is frequently used in conjunction with the damage element of mental anguish, and is thus submitted to the jury as a single element, “physical pain and mental anguish.” Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757 (Tex. 2003).EVIDENCE ACCEPTED IN TEXAS FOR PAIN AND SUFFERING AWARDS
Evidence Accepted to Prove Pain and Suffering. Evidence regarding (1) the severity of the injury, (2) post-trauma experience at the scene of the accident, (3) painful and frightening emergency room treatment, (4) fear of dying, (5) pain and loss of sight following surgery, and (6) loss of self-esteem leading to a reclusive nature constituted sufficient evidence to support a finding of damages for “physical pain and mental anguish.” Tri-State Motor Transit Co. v. Nicar, 765 S.W.2d 486 (Tex. App.-Houston [14th Dist.] 1989, no writ); Firestone Tire & Rubber Co. v. Battle, 745 S.W.2d 909 (Tex. App.-Houston [1st Dist.] 1988, writ denied).
Injury Alone Does Not Prove Pain. The mere fact of injury does not prove compensable pain and suffering. Biggs v. GSC Enters., Inc., 8 S.W.3d 765 (Tex. App.-Fort Worth 1999, no pet.).
Proof Needed for Future Pain and Suffering. In terms of future pain and suffering, the evidence is legally sufficient to support an award of future pain and suffering because the accident victim’s back continued to hurt and he testified that he still suffered headaches. Durham Transp., Inc. v. Valero, 897 S.W.2d 404 (Tex. App.-Corpus Christi 1995, writ denied)
Uncontested Proof of Pain and Suffering. If pain and suffering are proven and uncontroverted at trial, the jury must award compensation for pain and suffering. Jurors may not award “zero” dollars for pain and suffering if the evidence shows that there is pain and suffering and that it was caused by Defendant’s negligence. The amount a jury awards for pain and suffering in Texas is almost entirely up to the jury. Texas courts have consistently held that if the evidence in a trial shows that there was pain and suffering, it is an error for a jury not to award money for this element of damage.
“As a general rule, it is ordinarily the prerogative of the jury to set damages, but they have no authority to completely ignore the undisputed facts and arbitrarily fix an amount neither authorized nor supported by the evidence.” Thomas v. Oil & Gas Bldg., Inc., 582 S.W.2d 873, 881 (Tex. Civ. App.—Corpus Christi 1979, writ ref’d n.r.e.); see Del Carmen Alarcon v. Circe, 704 S.W.2d 520, 521 (Tex. App.—Corpus Christi 1986, no writ). In particular, the jury cannot ignore uncontroverted evidence of injury in denying any recovery for past physical pain. See Monroe v. Grider, 884 S.W.2d 811, 820 (Tex. App.—Dallas 1994, writ denied); see also Golden Eagle Archery, 116 S.W.3d at 775 (“[A] verdict awarding no damages for pain and suffering should [not] be upheld on appeal if there is objective, undisputed evidence of a significant injury and the jury could not have compensated the injured party in some other category of damages.”). However, where the evidence of pain is conflicting, scant, or more subjective than objective, a jury’s zero-damages finding is not against the great weight and preponderance of the evidence. Gonzalez v. Wal-Mart Stores, Inc., 143 S.W.3d 118, 123 (Tex. App.—San Antonio 2004, no pet.); Blizzard v. Nationwide Mut. Fire Ins. Co., 756 S.W.2d 801, 805 (Tex. App.—Dallas 1988, no writ)
In personal injury cases, some of the most powerful witnesses are what we call “lay witnesses.” Non-experts such as friends, family, neighbors, and coworkers are examples of lay witnesses. They are not experts, but rather witnesses who observed the injured person in some way. A lay witness’s testimony about physical pain and suffering is extremely valuable to a personal injury lawyer. Friends, family, and neighbors can all testify and provide factual observations about the physical condition they witnessed in person. They can testify about differences they noticed before and after the injury.
Even though they cannot feel the pain, these witnesses can testify about what they saw and the change in behavior of the injured party prior to the injury and compare it to how it is now after the injury. This demonstrates that the plaintiff is not simply claiming that they were in pain as a result of the injury; other people have observed the negative effects the pain has had on the injured person’s life… Examples include the injured person’s inability to play with their children due to the pain, their inability to interact with their spouse due to the pain, and their inability to do certain activities with friends that they previously enjoyed, such as sports or a hobby of some sort that they previously enjoyed participating in prior to the pain of the injury.
Plantiff as Lay Witness is Competent to Prove Their Own Pain and Suffering. The trial court and Court of Civil Appeals erred in holding that there was no evidence to support a jury verdict in a medical malpractice case when there was substantial lay testimony about the plaintiff’s infection at the time she was discharged from the hospital. While a layperson may not make a diagnosis, he or she may provide factual testimony about the physical condition of the body. Williams v. Bennett, 610 S.W.2d 144, 146 (Tex. 1980).
Plaintiff Was Not Allowed To Have Jury Touch Shoulders To Prove Pain. One method that Texas courts prohibited was when a plaintiff’s lawyer asked the jury to feel the injured shoulder to demonstrate how it was injured. The court determined that this was done to incite the jury’s emotions. Plaintiff was not permitted to have jurors feel her shoulders and upper body to demonstrate a soft tissue injury because such a demonstration went beyond the limits of introducing evidence and was intended to inflame the minds of the jury. Gray v. L-M Chevrolet Co., 368 S.W.2d 861 (Tex. Civ. App.-El Paso 1963, writ ref’d n.r.e.).
Plaintiff Was Allowed To Show Swollen Ankle To Prove Pain and Suffering. Plaintiffs, on the other hand, are usually able to show parts of their bodies that are injured, such as a swollen ankle or another part of the body where the injury is visible. Plaintiff was permitted to show the jury a swollen ankle, which resulted in a verdict of total and permanent loss of use of his leg below the knee because the burden of proof was on the plaintiff to establish the total loss of a part of his body. Tex. Employer’s Ins. Ass’n v. Sauceda, 636 S.W.2d 494 (Tex. App.-San Antonio 1982, no writ).
Photographs of the injury are admissible as evidence of pain and suffering. City of Irving v. Shipp, 342 S.W.2d 449 (Tex. Civ. App.-Fort Worth 1961, writ ref’d n.r.e.).
The plaintiff, as well as their doctor or others involved in treating or witnessing the effects of the injury, may testify. Other witnesses may testify about their observations that show the plaintiff was in pain or anguish. Classen v. Benfer, 144 S.W.2d 633 (Tex. Civ. App.-San Antonio 1940, writ dism’d judgm’t cor.); Isern v. Watson, 942 S.W.2d 186 (Tex. App.-Beaumont 1997, writ denied).
Some Types of Injuries Speak for Themselves that there was Pain and Suffering. Some types of injuries do not require testimony about how painful the injury was to establish damages for pain and suffering. In any case, testimony from the person who was suffering is subjective evidence – they “say” they are hurting and how bad the pain is. This is admissible evidence that supports a pain and suffering award, but it is also vulnerable to a defense lawyer arguing to the jury that the plaintiffs are exaggerating their complaints in order to obtain a larger award. Texas courts have ruled that the objective evidence of the injury suffered that was introduced was sufficient to support an award of pain and suffering in the following cases. In other words, it is common sense that there was pain with the following types of injuries, and no one has to tell anyone that it was painful, so a monetary award for pain and suffering is justified:
See the case of Hammett v. Zimmerman, 804 S.W.2d 663, 668 (Tex. App. Fort Worth 1991, no writ)(Examples of objective evidence of injury supporting an award of damages for pain and suffering that include):
- skull and facial fractures (accompanied by the dripping of spinal fluid from the nose) (Robinson v. Minick, 755 S.W.2d 890 (1988);
- organic brain syndrome and nerve damage (Cornelison v. Aggregate Haulers, Inc., 777 S.W.2d 542 (Tex. App. 1989);
- severe electrical burns (Loyd Elec. Co., Inc. v. Millett, 767 S.W.2d 476, 484 (Tex. App. 1989);
- broken hip (Johnson v. Tom Thumb Stores, Inc., 771 S.W.2d 582, 587 (1989);
- linear fracture of the foot (Russell v. Hankerson, 771 S.W.2d 650, 653 (1989);
- cut (Porter v. General Telephone Co. of the Southwest, 736 S.W.2d 204, 205 (Tex. App. 1987);
- lacerations, tendinitis, and torn muscles requiring surgery (Crowe v. Gulf Packing Co., 716 S.W.2d 623, 624 (Tex.App. Corpus Christi 1986, no writ);
- reverse curvature of the spine, concussion, and lumbar sprains (Del Carmen Alarcon v. Circe, 704 S.W.2d 520, 521 (Tex.App. Corpus Christi 1986, no writ); and
- broken ankle requiring full cast (Fuller v. Flanagan, 468 S.W.2d 171, 178 (Tex. Civ. App. 1971).
An attorney’s job includes educating jurors on why they should rule in favor of their client. A personal injury attorney in Dallas should be aware of the “reasons” the law allows for pain and suffering recoveries and should be able to demonstrate to the jury why those reasons the law allows for pain and suffering awards should apply in a case where they are requesting an award of damages for pain and suffering. When attempting to settle a case, personal injury lawyers should be able to convey these reasons to the insurance company as well. The law recognizes the right to be compensated for pain and suffering caused by the intentional or negligent/wrongful actions of others. These considerations should be kept in mind when making settlement demands or requesting that a jury award money to a client for pain and suffering.
The law allows for recovery from pain and suffering for a variety of reasons, some of which are as follows:
Compensation: Putting the injured person back in the position they would have been in if the injury had not occurred. Money is the only way for a court to carry out this compensation. There is no magic wand that can remove the pain. The harm done to a person’s health and ability to live without pain is compensable.
Deterrence: The policy underlying tort law is more than just victim compensation. It also aims to encourage the implementation of reasonable safeguards against injury risks. Holding wrongdoers accountable provides some deterrence for wrongdoers or their insurers to implement safety policies and correct bad behavior.
Costs are being shifted away from the victim and toward the wrongdoer: Who should bear the consequences of wrongdoing? Who is the victim, and who is the perpetrator? Because of the injury, the victim is usually unable to bear the cost of the wrongful act. As a result, the law requires wrongdoers to pay for the harm they cause.
Victims prefer their pre-injury and pre-pain condition, which justifies compensation. Nobody wants to be hurt or in pain, and for good reason. If someone causes harm to another person through reckless behavior, the injured person should be compensated for the loss of his pre-injury and pre-pain condition.
Loss of Self: The loss of a piece of your humanity is valuable. Pain has consequences – loss of mobility, loss of a limb, inability to enjoy things you once could – all because of pain. The pain caused by an injury can alter a person’s personality. This loss necessitates restitution from the wrongdoer.
A religious perspective on the value of pain and suffering can be beneficial at times. For those who hold religious beliefs, it is often beneficial to inquire about the ultimate punishment. God created both the universe and hell when he created the universe. Hell is a place of pain rather than death. From many religious perspectives, death is simply a release from the body, and it is also a release from pain. The ultimate punishment for those sentenced to hell is pain. One of the worst punishments an individual can receive, according to religion, is unending pain. People have prayed for death, but I’ve never heard of anyone praying for pain.
Another way to realize the value of avoiding pain in an injury claim is to create our own country. When our country was founded, the Constitution stated that our government could not use pain as a form of punishment. There will be no cruel or unusual punishment. You can sentence someone to death in our country, but you can’t sentence them to pain. Because our country places such a high value on avoiding pain, it protects individuals from punishment by inflicting pain.
If you require assistance, please call (972) 599-4100 for a free initial phone consultation. Our firm has years of experience assisting injured people. Once we accept your case, we will aggressively and intelligently pursue it, keeping you informed at every step of the way.FREE CASE REVIEWS
If you are looking for a personal injury attorney in Dallas, call (972) 599 4100. We offer free phone consultations. We also provide a free strategy session. The strategy session includes a summary of your case, legal issues involved, and legal issues we identify as being critical to maximizing the compensation owed.THERE IS NO FEE IF WE DO NOT WIN
You owe us nothing if we are unable to recover. We charge a contingency fee structured to take a percentage of what we recover. As a performance-based contract, the better we do for you, the better we do for ourselves. This aligns our interests in the case with our client’s interests.DIRECTIONS TO OUR OFFICE
Law Office of Doug Goyen
15851 Dallas Pkwy #605
Addison, Texas 75001
(972) 599 4100 phone
(972) 398 2629 fax
Directions to our office: We are on the southbound side of the service road to the Tollway. Stay on the Dallas North Tollway until you come to the Keller Springs exit. Take the Keller Spring exit. Stay on the service road on the southbound side and go just past Keller Springs. Our office is the 2nd building south of Keller Springs, located on the service road to the North Dallas Tollway in the Madison Business Center on the 6th floor.
By Doug Goyen, email@example.com
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