The only limit to value on pain and suffering damages is “reasonableness.” There is no definite standard or formula under California law to calculate pain and suffering damages. There is no permission under the law to use opinion testimony on the amount of reasonable compensation for pain and suffering either. The California courts have allowed the jury in its subjective discretion to calculate such an award. At trial, the jury is specifically instructed on the absence of a fixed standard in arriving at a value for a pain and suffering award; the only roadmap or guideline to this is a “reasonable amount based on the evidence and your common sense.”
Of course, lawyers, in their infinite wisdom and using creativity, have argued the following to juries for pain and suffering damages:
• A “per diem” argument: this is very popular, and has been expressly approved by the California Supreme Court. It is based on the notion that the injured child has not only suffered but will also continue to suffer, and asks the jury to calculate a sum (certain dollar amount) for each day of suffering. However, a good defense lawyer can turn this around by using this time segment argument in order to represent to a jury how exaggerated or ludicrous the pain and suffering damages are; so caution must be exercised when using this argument before jury.
• A “price for relief from pain” argument: this is another popular argument where the child’s injury attorney stresses the price everyone willingly pays to be relieved from pain, citing certain examples of the injury case; for example, $1,500 for the anesthesia before surgery, or $150 for Novocain before a tooth is filled; the idea here is that the “price of pain” is high, as seen by the amounts people willingly pay to be relieved of said pain (when relief from said pain is medically possible).
Most child injuries see an insurance company covering for the at-fault party’s negligent conduct, and most insurance companies now use computer software programs to calculate settlement value on a given injury. In my book The 10 Secrets You Need to Know about Your Injury Case before You Call a Lawyer (also available in Spanish), I explain this process in more detail. In a nutshell, this is the following analysis used for settlement value using computer software:
• Review all the injuries documented by ICD-9 codes; case value starts with the injuries themselves.
• Review the intensity, frequency, and duration of medical care.
• Review the loss of enjoyment of life, and any duties under duress damages.
• Review any wage loss claims duly documented by employer and duly supported in the medical findings.
• Review any permanent impairment to any particular body part by a medical doctor using the American Medical Association (AMA) 5th Edition guidelines, and calculated using the whole person percentage method.
★INTERESTING POINT: All injury case value begins with medical findings. You cannot entertain pain and suffering damages without medical findings. I believe the biggest “value driver” on an injury case is the medical proof of a permanent impairment to a particularly body part, duly supported by the AMA 5th edition guidelines, followed closely by the injuries themselves documented by their respective ICD-9 codes with descriptions. Not every injury case will warrant an AMA permanent impairment, but every case that has the medical symptoms should be examined for one.
For "Research Bugs" and other lawyers: See: 84 CACI 3095A; see Greater Westchester Homeowners Ass’n v. City of Los Angeles (1979) 26 C3d, 103, 160 CR 733, 741; Westphal v. Wal-Mart Stores, Inc. (1998) 68 CA4th 1071, 1078-1080, 81 CR2d 46, 50-52; also see BAJI 14.13.
Mark C. Blane is a San Diego Child Injury/Accident Attorney and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Office dedicated to representing families of minor children injured due to the negligence of others. If you or a loved one, who is a minor child, has been injured or killed in a child accident in San Diego, please order your free copy of Mr. Blane's book, The 10 Secrets You Need To Know About Your Injury Case, BEFORE You Call A Lawyer. It is full of helpful information that will help you protect your legal rights and it normally sells for $16.95. However, it is free to all California residents, or those injured in a California accident. Also, you can check out Mr. Blane's book on California child injuries called Justice for the Injured Child available for sale; this book has become a California parent's legal survival guide to their child's California accident case.