Pain and Suffering Damages

Author: LegalEase Solutions

QUESTION PRESENTED

 Whether Ohio state law has a standard for recovery of pain and suffering damages, and if so, what is that standard?

 SHORT ANSWER

 Generally, in an action for tort, proof may be offered on both pain from physical injuries and suffering from mental or emotional disturbance. As per the tort system in Ohio, damages may be awarded for bodily pain and suffering. However, there are no particular standards by which pain and suffering may be measured. Also, there is no substitute for human evaluation that has been suggested authoritatively by the courts for the determination of the same. Therefore, the question of damages for pain and suffering lies within the province of jury.

Crucially, the Ohio legislature has set a damage cap of $250,000 or three times the economic loss, whichever is greater. But this damage cap is applicable only to those plaintiffs who suffer from non-catastrophic injuries. Injured persons not suffering from catastrophic injuries may recover their noneconomic damages, which amount shall not exceed the greater of $250,000 or an amount that is equal to three times the economic loss, as determined by the court, to a maximum of $350,000 for each plaintiff who has suffered non-catastrophic injuries in that tort action or a maximum of $500,000 for each occurrence that is the basis of that tort action. The damage caps do not apply for noneconomic losses of the plaintiff such as permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system or permanent physical functional injury that permanently prevents the injured person from being able to independently care for self and perform life-sustaining activities and the statute provides no limitation on the amount of compensatory damages for such plaintiffs.

RESEARCH FINDINGS

Pain and Suffering

“In Black’s Law Dictionary (6 Ed.1990) 1109, we[court] find that ‘pain and suffering’ is a [t]erm used to describe not only physical discomfort and distress but also mental and emotional trauma which are recoverable as elements of damage in torts.” Fantozzi v. Sandusky Cement Prod. Co., 1992-Ohio-138, 64 Ohio St. 3d 601, 615, 597 N.E.2d 474, 484. Generally, “pain and suffering has been viewed as a unitary concept.” Id.

Accordingly, it was stated that:

In general, courts have not attempted to draw distinctions between the elements of ‘pain’ on the one hand, and ‘suffering’ on the other; rather, the unitary concept of ‘pain and suffering’ has served as a convenient label under which a plaintiff may recover not only for physical pain but for fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal.

Id. at 485.

“In Ohio, an action in tort may allege, and proof may be offered on both pain from physical injuries and suffering from mental or emotional disturbance. However, in Ohio there need not be a contemporaneous physical injury in order to allege damages for emotional distress.” Id. “Any definition of suffering, although not definitive, may include a broad range of emotional responses which may occur in conjunction with the trauma and resultant physical injury and pain, or irrespective of any physical injury and pain.” Id. “The California Supreme Court has held that mental suffering constitutes an aggravation of damages when it naturally ensues from the act complained of, and in this connection mental suffering includes nervousness, grief, anxiety, worry, shock, humiliation and indignity as well as physical pain.” Id. “It may be quite readily discerned why the damage element of pain has been equated with suffering, and unified into the damage element of ‘pain and suffering’. This basically has been the practice and procedure in Ohio.” Id.

In conclusion, “pain can be characterized broadly as physiological while suffering is more appropriately deemed psychological. Whereas pain refers to the physical sensations resulting from the corporeal injury, suffering is concerned primarily with the person’s emotional reaction to these sensations.” Id. However, “neither pain nor suffering deals with the limitations on the person’s life created by the injury.” Id.

Accordingly, an action in tort may be alleged for pain and suffering, and proof may be offered on pain from physical injuries and suffering from mental or emotional disturbance. Also, there need not be a concurrent physical injury that is to be established while alleging damages for sufferings from emotional agony. However, these pain and suffering damages may be distinguished from limitations that were created in one’s personal life as a consequence of the injury.

Standards for Recovery

“According to Ohio law, the phrase ‘legally entitled to recover’ means the insured must be able to prove the elements of his or her claim.” Kurent v. Farmers Ins. of Columbus, 62 Ohio St.3d 242, 245, 581 N.E.2d 533, 536 (1991). “The amount of damages is one element of the claim.” Id.

“Damages may also include awards for bodily pain and suffering.” Drehmer v. Fylak, 163 Ohio App.3d 248, 254, 2005-Ohio-4732, 837 N.E.2d 802, 806, ¶ 16 (2nd Dist.) “It would seem to follow that if Ohio has seen fit to provide for such a statement of law within its standard jury instructions, then the determination of such damage may be made by the jury separate from the other elements of allowable damage that it considers.” Fantozzi v. Sandusky Cement Prod. Co., 1992-Ohio-138, 64 Ohio St. 3d 601, 617, 597 N.E.2d 474, 486. Thus “damage awards representing undisputed special damages, without an award for pain and suffering, are against the manifest weight of the evidence.” Drehmer v. Fylak, 2005-Ohio-4732, ¶ 28, 163 Ohio App. 3d 248, 257, 837 N.E.2d 802, 808.

“These among other elements of damages are well known in Ohio jurisprudence and are allowable elements to be assessed by the jury.” Fantozzi v. Sandusky Cement Prod. Co., 1992-Ohio-138, 64 Ohio St. 3d 601, 612, 597 N.E.2d 474, 482. “Some of these elements of damages, such as the costs and expenses of the injury and loss of time from employment, entail only the rudimentary process of accounting to calculate. Other elements such as pain and suffering are more difficult to evaluate in a monetary sense.” Id. “The assessment of such damage is, however, a matter solely for the determination of the trier of fact because there is no standard by which such pain and suffering may be measured. In this regard, this court has recognized that no substitute for simple human evaluation has been authoritatively suggested.” Id. Therefore, “[t]he question of damages for pain and suffering is within the province of the jury.” Bradley v. Cage, Summit App. No. 20713, 2002-Ohio-816, 2002 WL 274638.

“Giving Ohio’s standard jury instructions, and permitting a separate interrogatory and jury finding on this damage, would help the jury understand exactly what claimed damages it is addressing. This adds more clarity and objectivity to this part of the jury determination.” Fantozzi v. Sandusky Cement Prod. Co., 1992-Ohio-138, 64 Ohio St. 3d 601, 617, 597 N.E.2d 474, 486.

Thus, since pain and suffering is one of the elements of damages, they may be assessed by the jury as there is no particular standard for the measurement of the same.

Threshold for Recovery

“The purpose of a civil trial is to fully compensate the injured party for his losses.” Bailey v. Allberry, 88 Ohio App.3d 432, 434, 624 N.E.2d 279, 280 (2nd Dist.1993). “Compensatory damages measure actual loss, and allow recovery for direct pecuniary losses resulting from an injury such as medical expenses, loss of time or money, loss due to the permanency of the injuries, disabilities or disfigurement, and  physical and mental pain and suffering.” Id.

Damages Caps

However “[b]y limiting noneconomic damages for all but the most serious injuries, the General Assembly made a policy choice that noneconomic damages exceeding set amounts are not in the best interest of the citizens of Ohio.” Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 476, 2007-Ohio-6948, 880 N.E.2d 420, 432, ¶ 40 (2007). “Injured persons not suffering the catastrophic injuries in R.C. 2315.18(B)(3) (for which there are no damages limits) may still recover their full economic damages and up to $350,000 in noneconomic damages, as well as punitive damages.” Id. at 433.

The relevant statute provides that:

2315.18 Amount of recovery to be determined

(A)(4) “Noneconomic loss” means nonpecuniary harm that results from an injury or loss to person or property that is a subject of a tort action, including, but not limited to, pain and suffering, loss of society, consortium, companionship, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, or education, disfigurement, mental anguish, and any other intangible loss.***

(B) In a tort action to recover damages for injury or loss to person or property, all of the following apply:

(1) There shall not be any limitation on the amount of compensatory damages that represents the economic loss of the person who is awarded the damages in the tort action.

(2) Except as otherwise provided in division (B)(3) of this section, the amount of compensatory damages that represents damages for noneconomic loss that is recoverable in a tort action under this section to recover damages for injury or loss to person or property shall not exceed the greater of two hundred fifty thousand dollars or an amount that is equal to three times the economic loss, as determined by the trier of fact, of the plaintiff in that tort action to a maximum of three hundred fifty thousand dollars for each plaintiff in that tort action or a maximum of five hundred thousand dollars for each occurrence that is the basis of that tort action.

(3) There shall not be any limitation on the amount of compensatory damages that represents damages for noneconomic loss that is recoverable in a tort action to recover damages for injury or loss to person or property if the noneconomic losses of the plaintiff are for either of the following: (a) Permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system;(b) Permanent physical functional injury that permanently prevents the injured person from being able to independently care for self and perform life-sustaining activities.

Ohio Rev. Code Ann. § 2315.18

“Compensatory damages are intended to make whole the plaintiff for the wrong done to him by the defendant.” Bailey v. Allberry, 88 Ohio App. 3d 432, 434, 624 N.E.2d 279, 280 (1993). “The fundamental rule of the law of damages is that the injured party shall have compensation for all of the injuries sustained.” Fantozzi v. Sandusky Cement Prod. Co., 1992-Ohio-138, 64 Ohio St. 3d 601, 612, 597 N.E.2d 474, 482.

Courts have consistently found that “when a plaintiff receives damages for medical expenses but does not receive an award of damages for past pain and suffering, and where there is evidence supporting such damages, such judgment is against the manifest weight of the evidence.” Ford v. Sekic, 2013-Ohio-1895, ¶ 13.

Thus,

in order to set aside a damage award as inadequate and against the manifest weight of the evidence, a reviewing court must determine that the verdict is so gross as to shock the sense of justice and fairness, cannot be reconciled with the undisputed evidence in the case, or is the result of an apparent failure by the jury to include all the items of damage making up the plaintiff’s claim.

Bailey v. Allberry, 88 Ohio App. 3d 432, 435, 624 N.E.2d 279, 280-81 (1993).

Generally, “a new trial should be granted under Civ.R. 59(A)(6) where it appears the jury awarded inadequate damages because it failed to consider an element of damages established by uncontroverted expert testimony.” Rieman v. Congemi, 2004-Ohio-1269, ¶ 10. Thus, “under circumstances where a substantial injury is sustained and there is unrefuted evidence of pain and suffering, courts have found that an award for medical expenses without any valuation for pain and suffering is against the manifest weight of the evidence.”  Ford v. Sekic, 2013-Ohio-1895, ¶ 13.

Accordingly, “[o]ne of the elements of compensatory damages that is universally allowed in actions for personal injuries is the pain and suffering endured by the plaintiff as a result of the injury. In addition to compensation for the physical pain, the jury is permitted to award compensation for the mental suffering endured.” Fantozzi v. Sandusky Cement Prod. Co., 1992-Ohio-138, 64 Ohio St. 3d 601, 615, 597 N.E.2d 474, 484.

However, “a plaintiff is entitled to compensatory damages in an amount to make him whole for the actual loss resulting from the wrong done him by the defendant.” Drehmer v. Fylak, 2005-Ohio-4732, ¶ 15, 163 Ohio App. 3d 248, 254, 837 N.E.2d 802, 806. But“[c]laims for pain and suffering may have fallen into public disfavor in recent years, being an alleged cause for substantial awards in tort-claim cases.” Id. at 807.

Hence, in Ohio, damages is one element of the claim that the must be proved. Once that is proved, the jury is entitled to award economic and noneconomic damages. There are two categories under the statute: catastrophic and non-catastrophic injuries. The damage cap only applies to non-catastrophic injury plaintiffs.

CONCLUSION

Based on the foregoing it can be concluded that in an action for personal injuries, pain and suffering undergone by the injured party as a result of damage is considered non-economic for damages purposes. Damages are determined by the type of injuries: catastrophic or non-catastrophic. Plaintiffs in a tort action who suffer from non-catastrophic injuries will fall under the damage caps as applied to their non-economic damages such as pain and suffering, whereas those plaintiffs suffering from catastrophic injuries and those injuries that resulted in permanent and substantial physical deformity or loss of use of a limb, or loss of a bodily organ system or permanent physical functional injury that permanently prevents the injured person from being able to independently care for self and perform life-sustaining activities shall have no limitation in the amount of compensatory damages and damage caps do not apply. In that case,  the jury is permitted to award unlimited compensation for the mental suffering endured along with the compensation for physical pain incurred by the injured party.