Modernizing the Critique of Per Diem Pain and Suffering Damages

Note — Volume 92, Issue 2

92 Va. L. Rev. 289
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Outside the legal academy, the debate over tort reform rages on. In the political arena, advocates on both sides of the aisle often use empty rhetoric in an attempt to persuade voters that tort reform as a whole is “good” or “bad.” Of course, this over-simplistic view of tort reform does not take into account the multifaceted nature of tort law. This Note examines one method of calculating noneconomic damages and attempts to provide a theoretical justification for why a plaintiff’s use of the per diem (or time-unit) method to compute future pain and suffering damages cannot be justified under any reasonable theory. The debate over the per diem method to calculate these damages has largely stagnated in the past forty years. During this same time period, nothing less than a revolution has occurred in the understanding of pain and pain management therapy in medical and psychological fields. However, these advances have not been incorporated into the per diem discussion. This Note analyzes and introduces the “cognitive-behavioral treatment” (CBT) model of pain to the legal literature with the hope of supplying a theoretical foundation for why the per diem argument should be impermissible in the many jurisdictions that allow such a method. The basic flaw of the time-unit perspective is that it improperly assumes a constant dollar unit for future pain and suffering without discounting for either future advances in pain management therapy or an individual’s future and likely ability to psychologically and physically cope with chronic pain. 

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  Volume 92 / Issue 2  

Chevron Step Zero

By Cass R. Sunstein
92 Va. L. Rev. 187

Rule-Based Dispute Resolution in International Law

By Rachel Brewster
92 Va. L. Rev. 251

Modernizing the Critique of Per Diem Pain and Suffering Damages

By Martin V. Totaro
92 Va. L. Rev. 289

The Writing on the Wall: Miranda’s “Prior Criminal Experience” Exception

By Thomas Windom
92 Va. L. Rev. 327