Pain and Suffering Damages in Personal Injury Lawsuits

Updated May 25, 2020

California law allows for the recovery of “pain and suffering” and other “non-economic” damages in personal injury cases. In general, there is no cap on pain and suffering damages.

However, there are a few notable exceptions, as summarized in the following chart:

To help you better understand California’s caps on “pain and suffering,” our California personal injury lawyers discuss, below:

• 1. What are “non-economic” damages?
• 2. Is there a cap on pain & suffering in California?
  • 2.1. Damage caps for medical malpractice / professional negligence
  • 2.2. Damages caps on California drivers
  • 2.3. Damage caps on convicted felons
• 3. How does a jury determine the value of pain & suffering?
• 4. What if I didn’t suffer a physical injury?
• 5. Do I need mental health counseling to recover non-economic damages?
• 6. Do insurance companies have a “pain & suffering” formula?
• 7. How do I prove damages for pain & suffering in a California injury case?

1. What are “non-economic” damages?

“Non-economic” damages are a type of compensatory damages in a personal injury case. Also called general damages, they include pain and suffering and other subjective losses to which it is not easy to attach a dollar amount.

In California, non-economic damages can include (without limitation):

• Physical pain from bodily injury such as broken bones,
• Mental anguish and mental pain,
• Suffering and psychological trauma,
• Scarring,
• Shock,
• Anxiety,
• Insomnia,
• Inconvenience,
• Emotional distress,
• Grief,
• Humiliation,
• Loss of a limb or organ (or its use),
• Loss of quality of life from a serious injury,
• Inability to engage in pleasurable activities (such as hobbies or sex), and/or
• Loss of enjoyment of life.

In contrast, economic damages (special damages) include medical expenses, medical treatments, and property damage losses.

2. Is there a cap on pain & suffering in California?

In most personal injury claims, California does not have a cap on pain and suffering and other economic damages.

But there are some exceptions, notably:

2.1. Damage caps for medical malpractice / professional negligence

There is a $250,000 cap on “non-economic” medical malpractice damages in California.

The $250,000 California “pain and suffering” damages cap was enacted when California voters passed the Medical Injury Compensation Reform Act (MICRA) in 1975.

MICRA is codified in California Civil Code 3333.2 CC.

Note that the cap does NOT apply in cases in which a healthcare provider recklessly or intentionally injured or abused a patient.

Additionally, it does not limit how much a plaintiff (accident victim/ injured party) can recover for compensatory damages such as medical bills and lost wages.

2.2. Damages caps on California drivers

On November 5, 1996, California voters approved Proposition 213, the Personal Responsibility Act of 1996.

California Civil Code 3333.4 was one result of Prop 213. It restricts the recovery of non-economic damages in actions for negligence arising out of the operation or use of a motor vehicle as follows:

• Drivers convicted of DUI may not recover non-economic damages. Additionally, insurers are not required to indemnify drunk drivers for such losses;
• Uninsured vehicle owners cannot recover or be indemnified for noneconomic damages except those caused by drunk drivers;⁵
• Uninsured drivers cannot recover or be indemnified for noneconomic damages under any circumstances.⁶

California courts have construed the meaning of “arising out of the use or operation of a vehicle” very broadly.

For instance, an uninsured driver who suffered second-degree burns after spilling coffee she had purchased at a fast food drive-through window was prohibited from recovering damages for her pain and suffering.⁷

The court held that “use of a vehicle” could include parking, leaving the doors open, or even failure to set the parking brake. Since the plaintiff should not have been driving without insurance, she should not be “rewarded” for breaking the law.

Again, this is only a cap on non-economic damages. A plaintiff who is wrongfully injured while in a car can still recover for actual out-of-pocket losses.

2.3. Damage caps on convicted felons

Proposition 213 also resulted in California Civil Code 3333.3. Civil Code 3333.3 prohibits people from recovering any damages if they were injured while committing, or fleeing after committing, a California felony.

As with the restriction on recovering when driving drunk, an actual conviction is required in order to bar recovery.

3. How does a jury determine the value of pain & suffering?

There is no fixed standard in California for deciding the value of non-economic damages such as mental suffering.⁸

The plaintiff must prove that he or she has suffered such harm or is reasonably certain to suffer it in the future. The jury will then use its judgment to decide a reasonable amount of jury awards based on the evidence and common sense.⁹

4. What if I didn’t suffer a physical injury?

A physical injury is not necessary in order to get damages for pain and suffering in California. For instance, in cases of negligent infliction of emotional distress or intentional infliction of emotional distress, there may not be any physical injuries whatsoever.

But non-economic damages are more likely to be granted when there is a physical injury and:

• The injury results in permanent disfigurement or long-term loss of function,
• Medical bills are high,
• Injuries can be verified by x-rays, lab tests or other objective criteria, or
• Recovery was difficult and/or took a long time.

5. Do I need mental health counseling to recover non-economic damages?

No. But getting counseling may be a good idea in cases involving little or no physical injury.

Testimony of a mental health professional is particularly appropriate in cases in which the plaintiff has experienced significant subjective symptoms such as:

• Insomnia,
• Anxiety,
• Depression,
• Post-traumatic stress disorder (PTSD), or
• Similar symptoms that are not easy to establish with objective tests.

6. Do insurance companies have a “pain & suffering” formula?

No. Some personal injury attorneys believe that insurance adjusters use a formula when calculating the amount of compensation available in a personal injury lawsuit.

But, in fact, each insurance company has its own policies. In practice, offers can vary considerably.

A formula can sometimes be useful, however, in estimating a settlement offer.

One common method is to multiply the plaintiff’s economic damages by a number between 1 and 5. The more severe the injuries and the greater the suffering, the higher the multiplier will be.

Example: Jim is texting while driving. As a result, he fails to stop at a stop sign and hits two pedestrians, Carrie and Mark.

As a result of this auto accident, Carrie suffers a cleanly broken arm. She has medical bills of $15,000 and she misses 5 weeks of work at $1,000 per week. Carries economic losses thus total $20,000.

Carrie’s inconvenience was not that severe and she fully recovered with no scars. So her lawyer might assign a multiplier of 2 to her case for a total settlement value of $40,000 (2 X $20,000).

Mark, on the other hand, suffers a complex fracture of his leg. His economic losses total $150,000. In addition, Mark is left with very bad scars and neuropathy (nerve pain) that might be permanent.

Because of the severity of the injury, Mark’s multiplier would be higher than Carrie’s – perhaps a 5. In that case, his settlement would be valued at $750,000 (5 X $150,000).

Ultimately, the value of a California personal injury settlement depends on many factors including:

• The plaintiff’s economic losses;
• The severity of the plaintiff’s injuries;
• How blameworthy the defendant’s actions were;
• The strength of the plaintiff’s evidence;
• The skill and the experience of the parties’ lawyers;
• The amount of money the defendant or insurer is willing to spend fighting the case; and
• The parties’ subjective assessment of the strength of their cases.

7. How do I prove damages for pain & suffering in a California injury case?

Proving the amount of damages for injury victims’ pain and suffering can be difficult.

Non-economic damages compensate an injured person for subjective losses.

But it is often best established with objective evidence such as:

• Medical records,
• X-rays,
• Photos of property damage and physical injuries,
• Comprehensive doctors’ and therapists’ notes;
• Before and after videos showing the plaintiff’s activity level;
• Social media posts, texts and emails (sometimes);
• Testimony of friends, co-workers and family;
• Evidence of lost work time; and
• Expert testimony regarding medical suffering, lost earning capacity and anything else that could be relevant.

Need to recover for pain & suffering in California? Call us for help…

If you, family members, or a loved one were injured in a car accident, “slip-and-fall” accident, medical malpractice, products liability or harm to your reputation in California, you may be entitled to compensation for all types of pain you suffered. If you wish to create an attorney-client relationship, we will get started on your case right away.

Call us for a free consultation, case review, and legal advice to discuss your claim with one of our caring California injury attorneys.

If you were injured in Reno or Las Vegas, click here to learn about damages for pain & suffering in Nevada.

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