There are damage caps on pain and suffering awards in some California personal injury lawsuits
Sometimes it's harder to work through pain and suffering than it is to endure medical treatments and surgeries.
If you've been in a serious accident or suffered an injury that left you with emotional scars as well as physical ones, you're not alone. Internal pain matters, too, and you can work with an injury attorney to recover damages for your emotions—but it's often harder to put a price tag on them.
Economic vs. non-economic damages
First, you need to know that there are two categories of damages that can be awarded in a personal injury lawsuit in California.
Economic damages are those that can be calculated based on actual costs. In other words, anything you paid for as a result of your injury can be reimbursed as part of your economic damages. This includes:
- Medical treatments
- Hospital stays and doctor's visits
- Prescription medications
- Medical and assistive devices (like prosthetics, wheelchairs, home modifications, etc.)
- Ongoing rehabilitative and other therapies
- Property repair or replacement
Economic damages also include lost wages, like the salary you missed from time lost from work as a result of the injury. It also includes future earnings. If you aren't able to return to work, or if you can return in a reduced capacity that doesn't earn as much as you would've if the injury hadn't happened, that's all taken into consideration. Your lawyer and financial experts can determine what you would've earned in your lifetime to figure out what you're owed.
Remember, too, that not all personal injury is car accidents and slip-and-fall accidents. There are other causes of action like libel and slander, contract disputes, or real property issues, and those damages are still economic even if you're not physically injured. If you've been defamed and it cost you your business or livelihood, that's an economic injury.
Non-economic damages are those that don't have a specific cost attached. These include:
- Pain
- Suffering
- Humiliation
- Limb loss (amputation) or disfigurement
- Loss of an organ
- Loss of enjoyment of life or hobbies and activities
- Loss of consortium
- Grief
- Shock
- Anxiety
- Insomnia
- Inconvenience
- Emotional distress
When can you claim pain and suffering in California?
Pain and suffering can be part of a lawsuit in California for most personal injuries, including:
The exception to this is that California doesn't permit pain and suffering damages in workers' compensation claims.
The other major exception is in medical malpractice lawsuits. You can recover up to $250,000 in pain and suffering, or any non-economic damages.
How much is my pain and suffering worth?
California doesn't have a set formula for calculating pain and suffering. In order to recover damages for pain and suffering (including mental distress and other economic damages), the plaintiff must prove that they suffered this harm or are certain to suffer in the future as a result.
There are several factors involved in determining whether a personal injury settlement or award can include pain and suffering damages. They include:
- The amount of the plaintiff's economic losses
- Severity of the physical injury
- The intent or recklessness of the defendant's actions
- The strength of the evidence
"Negligent infliction of emotional distress" or "intentional infliction of emotional distress" might not result in any physical injury, but they're causes of action in tort law.
| Case study: Crisci v. Security Ins. Co., 66 Cal.2d 425 |
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| Facts: Rosina Crisci was the landlord of an apartment building. Her tenant, June DiMare, was injured when a tread gave way on a wooden staircase attached to the building. However, this case isn't as much about Mrs. DiMare's physical and emotional injuries as it is a contract dispute between Mrs. Crisci and the insurance company.
The Security Insurance Co. refused to settle the claim and Mrs. Crisci sued in a personal injury action. She was awarded $91,000 to cover what she had to pay to Mrs. DiMare, and $25,000 for mental suffering. Analysis: Mrs. Crisci was able to recover damages for her mental distress in this case even though she wasn't physically injured. The court was careful to say that someone wronged by a breach of contract isn't always entitled to damages for mental distress. In this case, the breach of contract by the insurance company was also a tort, or a negligent act that caused harm. One reason why Crisci was awarded damages for mental suffering is because when a person purchases liability insurance, it's partially because they want the peace of mind and security that it can provide in case of an accident or loss. The case says that the reason why damages for mental distress are often limited is to reduce the likelihood of fictitious claims and trivial lawsuits. Here, though, the court didn't see the case as one that would give rise to fictitious claims and believed there was clear negligent conduct on the part of the insurance company. |
Still, non-economic damages are more likely to be awarded if there is a physical injury in addition to:
- Permanent disfigurement or loss of function
- High medical costs
- Injuries that can be diagnosed or verified objectively, like with X-rays, lab tests, or other medical tools
- Recovery that took or is anticipated to take a long time
Making your case for pain and suffering
Although documented mental health symptoms isn't required by law in California to receive pain and suffering damages, your case would be more likely to result in a damage award if you've been diagnosed with:
- Insomnia
- Anxiety
- Depression
- Post-traumatic stress disorder (PTSD)
- Other symptoms of a mental or emotional illness
If you're considering a lawsuit that includes damages for pain and suffering, there are important things to consider as you move in that direction. Your lawyer will evaluate all of the evidence, including:
- Medical records, including doctors' and therapists' notes
- Relevant photographs of property damage or physical injury
- Videos or photos that demonstrate the plaintiff's activities both before and after the injury
- Social media posts or other digital communications
- Sworn testimony of friends and family
- Testimony or records from the plaintiff's workplace that demonstrate any differences in the person before and after the injury
- Expert testimony regarding lost earning capacity
Documents & Evidence Checklist
Checklist of 30 items to help you prepare for making a personal injury or accident claim
Download in PDF format
The best way to find out if you have a claim for pain and suffering is to consult a California personal injury lawyer who is experienced in handling personal injury cases with pain and suffering or other non-economic damages involved and will do what they can to get you the highest award possible.
See our guide Choosing a personal injury attorney.