Pain and Suffering damages are “non-economic” damages allowed under Colorado law as part of a personal injury lawsuit.
What are non-economic damages?
Non-economic damages are damages that are not immediately monetarily quantifiable. These are intangible damages that can include any of the following:
- pain
- suffering
- inconvenience
- physical impairment
- scarring
- shock
- emotional distress
- grief
- humiliation
- disfigurement
- insomnia
- depression
- anxiety
- inability to engage in prior activities
- loss of consortium or companionship (including sex with a spouse or significant other)
- general loss of enjoyment of life.
What is pain and suffering?
Pain and suffering damages are non-economic damages. Pain and suffering can be part of a personal injury claim or lawsuit that results in a financial award for a person’s:
- pain
- anguish
- psychological damage, and
- mental suffering.
To be awarded as part of a personal injury lawsuit, a person must have endured pain and suffering as a result of the accident that caused the personal injury.
How do I prove pain and suffering damages at trial?
This type of damages can be proven in various ways, including but not limited to:
- psychological treatment through a counselor, or religious leader;
- treatment for pain a person currently suffers or suffered after the accident;
- long-term disfigurement of the person’s body;
- loss of limb and the mental and physical effect of that loss;
- proof of inability to do things the person once loved (e.g., hobbies); or
- loss of enjoyment of companionship with loved ones (playing with children, sex with spouse, etc).
A jury may consider all and more of these as it awards a victim damages for pain and suffering.
Can I recover for pain and suffering even if I didn’t have a physical injury?
A physical injury is not necessary for pain and suffering damages. Instead, the jury can consider:
- the stress a person went through;
- the shock a person endured because of the accident; or
- the difficulty of recovering from the incident.
Are there caps on pain and suffering damages in Colorado?
There are caps on pain and suffering damages in Colorado as well as all other non-economic damages. (There are no caps on economic damages, like medical bills).
Non-Economic Caps
- $300,000 in medical malpractice cases
- $250,000 (plus inflation) in most personal injury and other civil actions
- $500,000 (plus inflation) if clear and convincing evidence exists
There are no caps in cases of permanent physical impairment. Also, in worker’s compensation claims, pain and suffering do not qualify as compensatory damages.
The jury is not made aware of the caps, but the judge will impose limits on whatever the jury awards, if they award higher than the cap.
Below, our Colorado personal injury attorneys address frequently asked questions about pain and suffering damages in personal injury lawsuits and the injuries you may have suffered:
- 1. What are non-economic damages in Colorado?
- 2. What are pain and suffering damages?
- 3. How do I prove pain and suffering damages at my personal injury trial?
- 4. Are there caps on pain and suffering damages in Colorado?
- 5. Is the jury told about the caps during the trial?
It is difficult to assign a monetary value to pain and suffering.
1. What are non-economic damages in Colorado?
Pain and Suffering damages are “non-economic” damages allowed under Colorado law as part of a personal injury lawsuit. Non-economic damages are damages that do not have an easily or readily identified monetary value. If a value is not negotiated during a settlement, the jury determines the value of non-economic damages at trial.
Non-economic damages can involve any of the following:
- pain
- suffering
- inconvenience
- physical impairment
- scarring
- shock
- emotional distress
- grief
- humiliation
- disfigurement
- insomnia
- depression
- anxiety
- inability to engage in prior activities
- loss of consortium or companionship (including sex with a spouse or significant other)
- general loss of enjoyment of life.1
2. What are pain and suffering damages?
Pain and suffering damages are a financial award out of a personal injury lawsuit for:
- pain
- anguish
- psychological damage, and
- mental suffering.
Compensation for pain and suffering can only be awarded if a person endured the pain and suffering as the result of injuries stemming from an accident, which is the subject of your personal injury claim or lawsuit.2
2.1 Do I have to sustain a physical injury to be awarded pain and suffering damages?
A physical injury is not necessary for pain and suffering damages. Instead, the jury can consider:
- the stress a person went through
- the shock a person endured because of the accident, or
- the difficulty of recovering from the incident.
However, it is more common to see larger pain and suffering damages when a person sustains 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; and/or
- recovery was difficult and/or took a long time.
3. How do I prove pain and suffering damages at my personal injury trial?
This type of damages can be proven in various ways, including but not limited to:
- psychological treatment through a counselor, or religious leader;
- treatment for pain a person currently suffers or suffered after the accident;
- long-term disfigurement of the person’s body;
- loss of limb and the mental and physical effect of that loss;
- proof of inability to do things the person once loved (e.g., hobbies); or
- loss of enjoyment of companionship with loved ones (playing with children, sex with spouse, etc).
Pain and suffering damages are capped in Colorado.
3.1 Do I have to get mental health counseling in order to recover pain and suffering damages?
You are not required to get mental health counseling to recover these types of damages, but it may help. Mental health counseling can help establish, through expert testimony, that a person suffers from symptoms, like:
- insomnia
- anxiety
- depression
- post-traumatic stress disorder (PTSD), or
- other similar symptoms that are not easy to prove with objective tests.
3.2 How does the jury calculate my damage award?
A jury may consider all of the different ways of proving pain and suffering, but no set way exists to determine how the jury must come to its award.
The jury will consider all of the evidence put before it at the personal injury trial and will make its decision based on that evidence. With the help of an experienced attorney, the jury can be convinced of the truth of the pain and suffering a person faced after an accident.
4. Are there caps on pain and suffering damages in Colorado?
Caps exist on pain and suffering damages in Colorado as well as all other non-economic damages. 3 A cap is:
- a limitation
- placed on the maximum dollar amount
- a person may be awarded for non-economic damages.
Pain and suffering damages are included in the Colorado damage caps.
4.1 What is the cap in medical malpractice cases?
Medical malpractice cases are given particular protection. Any tort action against:
- a health care professional; or
- a health care institution
is limited to $300,000 in non-economic damages. Non-economic damages can never exceed this amount for medical malpractice cases under Colorado law.4
4.2 What is the cap in most civil cases?
The cap in most civil cases is $250,000 adjusted for inflation from the time the Colorado code section was adopted creating the cap.5
Your attorney can help you understand the adjustment for inflation applicable to your case, as it depends on when your injury occurred.
4.3 What is the “clear and convincing evidence” exception?
In civil cases that are not medical malpractice cases, if there is “clear and convincing evidence” that a higher award than $250,000 is justified, the amount can be increased to $500,000 (adjusted for inflation).
Most civil actions are proved by a “preponderance of the evidence,” a lower standard than clear and convincing.6
“Clear and convincing evidence” is an evidentiary standard of proof higher than “preponderance of the evidence,” yet not as high a standard of proof as “beyond a reasonable doubt.” Clear and convincing evidence is established by showing that the truth of a contention is highly probable and free from serious or substantial doubt.7
4.4 Is there a cap if I suffered permanent physical impairment?
No. If a person suffers a permanent physical impairment as the result of an accident, his or her pain and suffering damages are not capped under Colorado law.
There is not a widely accepted definition for permanent physical impairment under Colorado law. However, the bar is high, but can be cleared with experienced legal help.
5. Is the jury told about the caps during the trial?
The jury is not made aware of the damage caps during the trial and will not know about them during deliberation. If the jury awards a victim more than the applicable cap, the judge will limit the amount of recoverable damages.
Example: Jonah was involved in a car accident that was caused by Anne. The jury awards him $600,000 in pain and suffering damages, even though he did not suffer permanent physical disfigurement. Jonah’s damages will be capped by the judge at $250,000 (adjusted for inflation).
Call our law firm for legal advice. We offer free consultations.
For questions about pain and suffering damages or to confidentially discuss your case with one of our skilled Colorado personal injury attorneys, do not hesitate to contact us.
We represent clients in and around Denver, Colorado Springs, Aurora, Fort Collins, Lakewood, and several nearby cities.
Legal References:
- 1C Colo. Prac., Methods of Practice 55:20 (7th Ed.) (Describing non-economic damages).
- Goodson v. American Standard Ins. Co. of Wisconsin, 89 P.3d 409 (Sup. Ct. of Colorado 2004) (Non-economic losses recognized under the rubric of compensatory damages include emotional distress; pain and suffering; inconvenience; fear and anxiety; and impairment of the quality of life.) See also CRS 13-21-102.5 (“Noneconomic loss or injury” means nonpecuniary harm for which damages are recoverable by the person suffering the direct or primary loss or injury, including pain and suffering, inconvenience, emotional stress, and impairment of the quality of life. “Noneconomic loss or injury” includes a damage recovery for nonpecuniary harm for actions brought under section 13-21-201 or 13-21-202.).
- 8 Colo. Prac., Personal INjury Torts and Insurance 38:27 (3d Ed.) (By statute, damages awards in civil actions for noneconomic losses or injuries are subject to a certain dollar recovery limits.)
- CRS 13-64-302 (Limitation of liability–interest on damages).
- CRS 13-21-102.5 (Limitations on damages for noneconomic loss or injury).
- CRS 13-25-127 (Civil actions–degree of proof required) (Any provision of the law to the contrary notwithstanding and except as provided in subsection (2) of this section, the burden of proof in any civil action shall be by a preponderance of the evidence.)
- Metro Moving & Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995).