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Comfortably Numb: Medicalizing (and Mitigating) Pain-and-Suffering Damages

2009; University of Michigan Law School; Volume: 42; Issue: 2 Linguagem: Inglês

2688-4933

Lars Noah,

Medical Malpractice and Liability Issues

Pain and suffering long ago became synonymous with noneconomic damages, but it makes no sense to treat nonphysical harms as invariably noneconomic, at least not nowadays. Physical and mental injuries have both pecuniary and nonpecuniary consequences, but doctrine continues to reflect long-discredited notions about the nature of emotional harms. In addition, judicial hostility to psychiatric mitigation emerged at a time when available treatment options were decidedly primitive. As interventions have become safer and more effective, and as the social stigma associated with their use has largely dissipated, courts should revisit the issue. Applying the doctrine of avoidable consequences in cases of emotional injury should result in a recharacterization of some pain-and-suffering damages as medical expenses, whether or not the plaintiff chooses to make such use of an award in the future, and it might help to confine what remains under the banner of noneconomic damages.