Pain and Suffering Damages in Personal Injury Cases: An Empirical Study

Abstract

Many jurisdictions award pain and suffering damages, yet it is difficult for judges or juries to quantify pain. Several jurisdictions, such as California, cap pain and suffering damages or other noneconomic damages, and legal scholars have proposed ways to control such damages. Reforms and proposals, however, have been based on limited empirical evidence. It remains an open question whether components of economic damages explain pain and suffering damages. This study employs a unique dataset of Taiwan district court cases and uses detailed information on the components of pecuniary damages. Pain and suffering damages highly correlate with the plaintiff's medical expenses, level of injury, and the amount requested by the plaintiff. The association with the amount requested by the plaintiff persists when one accounts for the likely quantifiable influences on pain and suffering damages, evidence of a possible anchoring effect. The strong correlation between economic damages and noneconomic damages persists in a large U.S. dataset of judge and jury trials, in which the noneconomic fraction of total damages is no greater than the pain and suffering fraction of total damages in Taiwan. Judges and juries consistently produce coherent patterns of noneconomic damages.

Empirical Foundation of Normative Arguments in Legal Reasoning

“…Currently, not all empirical legal works integrate their causal findings into a framework of teleological or consequential argument, but they could. A causal inference in the legal 16 For observational studies on this issue, see, e.g., Chang et al (2023a) and Chang et al (2017). 17 For empirical studies on this issue, see, e.g., Lin and Chang (2023), Lemley and Miller (2015), and Sayer, Hess, and Hall (2021).…”

Medical Malpractice Appeals in a Civil Law System: Do Administrative and Civil Courts Award Noneconomic Damages Differently?

“…So far, the empirical evidence on the attribution of medical malpractice damages in civil law countries is limited . Chang et al () consider the case of car accidents and medical malpractice in Taiwan, finding that pain and suffering damages strongly correlate with medical expenses, injury level, and the amount requested by the plaintiff. Flatscher‐Thöni et al () analyze Austrian courts' decisions in order to investigate whether the use of per diem or lump‐sum schemes influence the amount of pain and suffering damages.…”

“…12 So far, the empirical evidence on the attribution of medical malpractice damages in civil law countries is limited. 13 Chang et al (2017) consider the case of car accidents and medical malpractice in Taiwan, finding that pain and suffering damages strongly correlate with medical expenses, injury level, and the 11 Some jurisdictions, such as the U.S., also award punitive damages. The attribution of punitive damages tends to be rare and these are only awarded under certain circumstances, generally requiring more than negligence (e.g., gross negligence, attempt to cause intentional harm).…”

“…This is true for several countries. See Bovbjerg et al () for the U.S. and Chang et al () for Taiwan.…”

“…This is true for several countries. SeeBovbjerg et al (1989) for the U.S. andChang et al (2017) for Taiwan.21 Citation practices are different from common law: they are rare, specific, only made when needed, typically to complement a statute or code.…”