Pain and Suffering Awards: They Shouldn’t Be (Just) about Pain and Suffering

In this paper, we challenge the conventional view that pain-and-suffering awards should be interpreted literally as a compensation for feelings of pain and suffering. People adapt to conditions as serious as paraplegia and blindness, returning rapidly to near-normal levels of happiness, which means that pain-and-suffering awards based literally on pain and suffering would be small. We argue that compensation for these types of conditions should be larger than would be dictated by pain and suffering alone because people legitimately care about more than just the pain and suffering that results from an injury; they also care about a variety of other factors, such as their capabilities to perform various functions, that often do not affect happiness. We propose the outlines of a method for determining noneconomic damages that divides the problem into three judgments, each to be made by the constituency most competent to make it.