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Litigating Awareness: Non-Economic Damages and the Unconscious Plaintiff

By Roseann Lynn Brenner and Gary M. Every

In most medical negligence cases, the most difficult damages for an attorney to forecast are non-economic ones such as pain and suffering, and loss of enjoyment of life. This difficulty arises from the nature of the damages themselves ' pain, suffering and enjoyment are inherently subjective experiences.

The criteria that a jury will use to evaluate those damages do not make the attorney's assessment any easier. In Pennsylvania, for example, with respect to pain and suffering, juries are simply instructed that “the plaintiff is entitled to be fairly and adequately compensated for all physical pain, mental anguish, discomfort, inconvenience and distress ' ” and with respect to loss of enjoyment of life, juries are instructed that “ plaintiff is entitled to be fairly and adequately compensated for the loss of his/her ability to enjoy any of the pleasures of life.” Pa. SSJI Civ. 4th Ed. 7.130; 14.170.

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