Comfortably Numb: Medicalizing (and Mitigating) Pain-and-Suffering Damages
Among the compensatory damages that a plaintiff may recover in tort litigation, awards for pain and suffering have attracted the most attention. Attorneys, judges, legislators, and scholars from various disciplines long have struggled to measure and make sense of this aspect of compensation for tortiously caused injuries. With the steady expansion of what falls within the rubric of nonpecuniary damages and in the types of claims eligible for such awards, to say nothing of the growth in the absolute and relative size of this portion of compensatory awards, pain-and-suffering damages have become increasingly controversial.
Although it canvasses the competing arguments about this subject and accompanying proposals for reform, this Article ultimately sidesteps much of the debate in order to offer a fairly modest set of suggestions for better understanding and perhaps more sensibly cabining monetary damages for pain and suffering. A perspective rooted in medical practice might help to clarify the purposes and, in turn, the proper magnitude of such awards. Once we come to understand emotional distress as just another type of injury partially responsive to therapeutic interventions, the avoidable consequences rule, which obligates victims to take reasonable steps to mitigate their harm, should provide clearer parameters for fixing pain-and-suffering damages.