Personal injury damages are divided into “special” damages, or economic damages, and “general” damages, such as “pain and suffering.” Special damages, because they are purely economic, are reasonably easy to calculate. The victim of an accident required medical care, for which there are receipts; the victim missed work, for which there is a basis to calculate precise losses. For victims who fully recover and return to work, economic damages are very straightforward. When victims suffer a permanent disability that causes a loss of “future income” or they require “future medical care,” damages can be somewhat speculative, but amounts are still based on the expected economic impact of injuries.
General damages are much more controversial, because there is no way to measure a victim’s physical pain and mental suffering, which, though very real, are intangible. A victim’s pain and suffering goes beyond physical limitations to the psychic harm of the limitations: the musician who can no longer play an instrument; the dancer who cannot walk, let alone dance; the mother who cannot hold her child; and the husband who cannot make love to his wife. How much money can gloss over the pain or fill the void of lost happiness?
The law allows juries to award general damages in an amount they feel is just. Traditionally, there have been no legislative guidelines, no floors or ceilings. So jury awards can vary widely, based on a victim’s emotional resonance with a jury. Juries are unpredictable, and experienced attorneys can always point to cases where juries inexplicably underpaid or overpaid a victim for pain and suffering.
Many states have reacted to this uncertainty by imposing caps on general damages, especially for medical malpractice cases. While this approach may control the cost of malpractice insurance, it creates an equal protection problem for plaintiffs. Why should a victim who loses a foot in a car accident collect more in damages than a patient who loses a foot due to a surgical error? In some states, courts have ruled damage caps unconstitutional. New York does not have caps on damages, but a judge can throw out a damage award that is unreasonable and outrageous. In those cases, the court can offer an award, which the parties can accept or reject in favor of a new trial.
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