Ladies and Gentlemen of the Jury (Jun-09)

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How should the US judicial system determine compensation for "pain and suffering"  Take a look at a complicated case. 

Ladies and Gentlemen of the Jury

Let's suppose that you're a member of a jury for a court case involving an industrial accident. A 29-year-old employee, Charlie, has suffered brain damage in this accident.

Charlie was once a skilled worker who operated complex machinery. Since the accident, he has functioned cognitively at the level of a three-year-old child, and there is no chance for improvement of his state. Charlie has no visible scars on his body and is not experiencing physical pain from the accident.
Furthermore, as a result of the brain damage, Charlie is emotionally happier than he was before the injury. Several witnesses have testified that Charlie was somewhat volatile before the accident—he got angry easily and had bouts of sadness. The witnesses noted that since the accident Charlie is always happy, despite his cognitive impairment.
You are now in the jury room. You and your fellow jury members have decided that the factory where Charlie worked had inadequate safety precautions. The jury will return a verdict for the plaintiff, Charlie. The jury has already agreed on a sum to compensate Charlie for his medical expenses, his ongoing medical care, and lost wages for the rest of his life.
Charlie's attorney has asked for an additional monetary award for pain and suffering. Which statement below most closely describes your thoughts, as a juror trying to decide on an award for pain and suffering?
  • Charlie should get a very large award for pain and suffering, since his life overall has been so adversely affected by the accident.
  • Charlie should get a moderate award for pain and suffering, since he has suffered cognitive impairment, but he does not have ongoing physical pain.
  • Charlie should get a very small award for pain and suffering, since he is actually happier now than he was before the accident.
  • I don't think that the US judicial system should allow awards for pain and suffering at all.
  • I'm not sure what pain and suffering means in a legal sense, and I don't know what to award to Charlie.

How do your answers compare?

In a recent article, CBDSM's Peter A. Ubel and Carnegie Mellon University's George Loewenstein challenge the conventional view that awards for pain and suffering should be made literally as compensation for feelings of pain and of suffering. Ubel and Loewenstein argue from their expertise in the psychology of judgment, decision making, adaptation, and valuation of health states.

They cite many studies showing that people adapt well to very serious disabilities, such as paraplegia and blindness, returning fairly quickly to near-normal levels of happiness after a period of adjustment. Thus, if juries make pain-and-suffering awards literally on the basis of misery, such awards would be unacceptably small.

But Ubel and Loewenstein delve further. Even though people with serious disabilities have normal levels of happiness, they would still prefer not to have the disabilities. "We believe that the reason for this discrepancy between hedonic measures and stated preferences . . . is that people care about many things that are not purely hedonic, such as meaning, capabilities, and range of feeling and experience."

In enlarging the definition of pain and suffering, Ubel and Loewenstein do not propose to merely add to the factors that a jury must take into consideration in the current judicial system. Indeed, the authors find several problems with the current system, including inequities in compensation and the evaluation of injuries in isolation. They include in their article a three-part proposal for a radical change in judicial procedure.

First, they would recruit a random panel of citizens to compile and categorize injuries. Groups of injuries would be ranked on the basis of the appropriate level of compensation for those injuries. This panel would call on experts to inform their decisions. "Decisions about an injury's proper category would take into account not only the emotional consequences of the injury but also the person's ability to function across important life domains—social functioning, work functioning, sexual functioning, sleep, and the like."

This list of grouped and ranked injuries would have some similarities to the list of health conditions that the State of Oregon created in the 1990s to help allocate Medicaid funds. Another existing model for this list would be lists used to make decisions about workers' compensation claims—for example, benefits for loss of a thumb are twice as great as benefits for loss of a second finger.

Second, Ubel and Loewenstein propose a mechanism for determining monetary damages. Using the list produced by the citizen group described above, federal or state legislators could determine a maximum award for pain and suffering. Based on this damage cap, a range of awards would be set for each category of injuries.

Third, the juries would enter in, using the guidelines set up in the steps described above and then tailoring awards to the individual circumstances of each case. Under this plan, juries would do what people tend to do best: compare and rank things. Ubel and Loewenstein note that "juries could help determine if the victim has extenuating circumstances that should drive the award to either the lower or upper end of acceptable compensation for that group of injuries. . . Our proposal does not do away with jury trials but instead enables juries to involve themselves in the kind of judgments they are best suited to make."

Ubel and Loewenstein conclude, "The determination of pain-and-suffering awards should be revised to take account of recent advances in understanding human judgment and decision making."

Read the article:

Ubel PA, Loewenstein G.Pain & suffering awards: It shouldn't be (just) about pain & suffering. Journal of Legal Studies 2008;37(2):S195-216.