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This presents many problems. First of all, different people have varying "pain thresholds," meaning that they feel pain to different degrees. The difference in the "pain threshold" from one individual to the next may not be the degree to which each feels the pain, but is rather the degree to which they are able to tolerate it. In other words, pain that would drive subject A to distraction may be felt just as intensely by subject B, yet subject B's psychological makeup may allow him to deal with the pain more effectively. 

The second problem in measuring pain is that although there is no objective scale for measuring the intensity of pain, the jury is asked to compensate for the pain with a specific dollar amount. If it cannot objectively measure the pain, how can it possibly make an objective award? Another complication is the consideration of duration of the pain, including the various levels of pain that are felt at different times during the total period of time that the pain exists. From the moment of impact, and probably for the rest of his life, Sam Brown will suffer pain. But clearly the pain that he will be suffering ten years after the accident is in no way comparable to the pain he felt in the ten minutes immediately after the impact.

Descriptions of the accident and subsequent medical procedures, combined with viewing the mangled limbs, can allow any human being to understand that there was a tremendous amount of pain for Sam over a prolonged period of time. But with that evidence alone, the jury can only conclude that it should award a tremendous number of dollars as compensation for the tremendous amount of pain. But each person's definition of "tremendous" may be different. One hundred thousand dollars may be a tremendous amount of money to one individual, while $1,000,000 may not be a tremendous amount of money to another individual. 

The problem is further exacerbated by the undeniable fact that the individuals who must attempt to put a dollar amount on the appropriate compensation for the pain (claims people or jurors) can only guess at the agony the victim has endured, unless they have had the identical injury themselves, or have had direct experience with someone having had the identical injury. The people charged with the problem of "pricing" the pain can appreciate that the magnitude of the pain goes beyond their own comprehension, but they seldom receive any assistance to allow them to make either a fair and appropriate offer in settlement, or an appropriate award for these damages.

Accurate evaluation of the pain connected with a complex injury would require an understanding of the wide range of fluctuation in pain levels that may occur over a period of time, or in a single day. It would require a comprehension of the different pain associated with different types of injury, distinctions that the average person cannot make. Most individuals, for example, have enough experience with burns to be able to approximate the sensation of serious burn injury, but may be without bearings to imagine the pain of a fractured disc. 

The traditional approaches to this problem are not satisfactory. Obviously, when an injury is visually disturbing, this feature can help the evaluators of the pain to gain a bit of insight into its magnitude. The description of the pain by the injured party is typically the most accurate method of assessing the pain, but the process can seem self-serving, and can even make the plaintiff seem less attractive, a chronic complainer. The description of the symptoms of pain from eyewitnesses can be effective. Attending physician's statements concerning the elements of pain on a comparative scale to other injuries they have treated offer additional insight to the pain evaluators in making their judgments. The use of traditional "pain and suffering" charts can be beneficial, but these charts neither describe nor measure the pain. Instead, they list a chronological sequence of events, including surgeries, medications, physical therapy and convalescence on a calendar to demonstrate the events that took place in dealing with the injury. But the evaluators receive no assistance in determining how to equate dollars to pain intensity. 

It may be that the strongest tool among the traditional approaches to measuring pain is the imagination of the pain evaluator. Unfortunately, this still does not provide any link between the pain suffered on an objective scale and the dollars that should be awarded as compensation for the pain. 

Rarely will one find a judge, an attorney, a juror or a member of the claims community who feels that they would be willing to endure the pain suffered by the victim in exchange for the dollars that have been awarded to compensate for this pain. This is a clear indication, if not outright proof, that it may not be possible to award sufficient dollars to compensate for pain using the methods available. It may also mean that pain awards are grossly inadequate. There is no absolute solution to this problem. There are, however, ways to provide pain evaluators with keener insights as they attempt to make fairer and more equitable awards for this difficult area of intangible damages. 

Let us start with the hypothetical proposition that all of the jurors had suffered the same injury as the victim. It is reasonable to assume that the jurors would then be better able to make a proper financial allocation for this element of damages than if all they could rely upon were their imaginations. They would in fact be feeling what the victim has felt, and would have been significantly more motivated to empathize with the victim's predicament. But this is never the case (and it is fair to assume that similarly injured jury candidates would never make it onto the jury). 

Consequently, we must seek ways to approximate the effect of this hypothetical experience. We have to try to give the jury the ability to understand the pain in terms familiar to them.

Before pharmaceutical manufacturers can bring any new drug to market, they must obtain approval from the Food and Drug Administration. The drug is submitted to a series of tests in two areas. The first involves the safety of the drug. 

The second area involves the effectiveness of the drug. In the effectiveness studies of pain-relieving drugs, doses of the drug are measured according to their ability to relieve certain specific types of "standardized" pain such as that from tooth extraction, labor pain, and myocardial infractions. There are also studies, performed by pain clinics at major medical centers around the country, which show the amount of different narcotic and non-narcotic analgesics required to deal with varying levels of specific types of pain, such as the pain of cancer. The existence of this data permits one to review the medical records of a traumatic injury case and extract the total amounts of various analgesics prescribed. Then, through the use of a pharmacological expert, one may determine the equivalent amounts and types of pain that could have been treated with the same amounts of medication. True, this does not give a pain evaluator an objective scale that would assign a dollar value to a specific amount or type of pain. Yet it does allow the pain evaluator to better comprehend the pain from the specific injury by matching it systematically with pain with which he or she is personally familiar. 

To this end, I contacted a prominent pharmacologist to assist in exploring how a model could be built for comparing types and levels of pain. Regarding the injuries in the case described earlier, the pharmacologist determined that during the initial year subsequent to the accident, the victim would require sufficient amounts of prescription analgesics (i.e. Morphine Sulfate I.V., Tylenol Code 3, Percocet, Naprosyn, and Darvocet N 100) to treat a level of pain that would result from 183 molar extractions, as well as the pain endured from any one of the following scenarios: 388 myocardial infections, anywhere from 776 to 1,552 hours of labor pain, or 52.7 days by a terminal cancer patient.

Thus he was able to translate the nearly unimaginable pain from the actual injuries and measure it, through the amounts of pain-killing medication administered, in terms of pain far more familiar to the average juror. It is important to emphasize that we are not stating that the pain amounts are equivalent. What we are saying with confidence is that, based on medication prescribed, there is sufficient administration of prescription analgesics to have treated the equivalent conditions. In reality, it is well known that pain medications are usually insufficient to totally eliminate the pain for which they were prescribed. In fact, in most traumatic injury cases the only realistic objective is that the prescribed pain medication will make the pain bearable. 

Thanks to the model, we find that we have changed the evaluation of the pain of the original injury from the vague standard of being "a tremendous amount of pain." It is easier, clearer and more useful to think of the pain in terms of the pain endured from one heart attack per day for 388 consecutive days followed by one molar extraction per day for 183 consecutive days. Even though a pain evaluator may not have suffered either condition, he or she probably has known people who have suffered the conditions, or, if nothing else, has witnessed some dramatic presentation, such as a movie or television show, that depicts such an event. If one were to use, in place of heart attack pain, the pain of childbirth (bearing in mind that the doctors do not routinely administer morphine for general labor pain but require acute pain to be present), we would describe the pain of the injury in terms of 776 to 1,552 hours of labor pain, (which translates into labor pain with a duration of anywhere from 32.33 days, where a day is considered a 24 hour non-stop period, to 64.66 days). Most women will be able to identify with this comparison sufficiently to gain a significant depth of understanding of the pain endured by the victim, and to help the male claims administrator or juror to better understand it as well. 

 
Conclusion 

This approach has proven to be very effective for use in negotiation of fair and equitable settlements. It is unlikely that this type of testimony entered through a pharmacological expert would be barred from the trial, for in any case where the jury will be instructed that they may compensate for pain, it is imperative that they have some way of understanding the magnitude, degree and duration of the pain for which they are compensating. Therefore, the prospect of this type of testimony in trial presents the defendant with an ominous non-statistical proposition to evaluate. There is no way to predict how a given set of jurors will evaluate pain once they have a much stronger grasp of the true meaning of the pain they are evaluating. This approach, again, does not provide an objective scale for pain measurement, but it does help the pain evaluators answer the question "How much does it really hurt?"