How to Evaluate Non-Economic Damages Using Science
BY DR. GLEB TSIPURSKY
IMAGINE A CLIENT whose life has been upended by a traumatic event, leaving them emotionally shattered. How can we ensure their suffering is fairly represented in court? Traditional methods of assessing non-economic damages are inconsistent and subjective, undermining the pursuit of justice.
The Quality-Adjusted Life Year (QALY) metric offers a scientifically validated, quantifiable measure that can enhance the accuracy and credibility of legal claims. This article explores the profound impact of non-economic damages such as mental anguish on individuals, the limitations of conventional evaluation methods, and the transformative potential of QALY in legal practice. By adopting this objective tool, lawyers can better advocate for their clients, ensuring fair compensation and fostering trust in the judicial system.
The Hidden Toll: Unpacking Mental Anguish and Emotional Distress
Mental anguish and emotional distress encompass intense emotional experiences that profoundly impact an individual’s well-being. These experiences can manifest as deep sadness, grief, anger, anxiety, and panic attacks.
Cognitive components include negative thoughts, rumination, and difficulty concentrating, which can impair the ability to function in daily life.1
Physical symptoms highlight the profound connection between mind and body. Individuals may experience headaches, muscle tension, sleep disturbances, fatigue,
1 Jain, Priyanshi. “Emotional Distress and Claim in Law of Torts.”, No. 1 Int’l JL Mgmt. & Human. 6 (2023): 669.
and gastrointestinal issues. These physical manifestations compound the suffering and significantly diminish the quality of life.
The pervasive effects extend to personal relationships and professional life. Relationships may become strained, and individuals might withdraw socially, reducing their support network. Job performance often suffers due to decreased concentration and increased absenteeism, jeopardizing career prospects. Overall, the quality of life is markedly diminished, with reduced pleasure and satisfaction.
Why Evaluating Emotional Anguish Matters for Lawyers
Accurately evaluating emotional anguish is essential for ensuring justice and fair compensation in various legal cases. Emotional distress can profoundly impact an individual’s quality of life, yet its intangible nature makes it challenging to quantify.
The Quality-Adjusted Life Year (QALY) metric offers a scientifically validated, quantifiable measure that can enhance the accuracy and credibility of legal claims.
In discrimination cases, victims often suffer severe emotional distress due to harassment and unfair treatment, leading to anxiety, depression, and social withdrawal. Accurately evaluating and demonstrating this distress is vital for securing fair compensation and addressing the wrongs they have endured.
In personal injury claims, plaintiffs frequently experience significant emotional trauma alongside physical injuries. For example, a person injured in a car accident may develop anxiety or post-traumatic stress disorder (PTSD). Presenting a comprehensive evaluation that includes both physical and emotional damages ensures clients receive compensation reflecting the full extent of their suffering.
Wrongful death cases involve profound grief and emotional distress for surviving family members. Accurately assessing and conveying their emotional suffering is essential for claims related to emotional distress and loss of companionship.
In medical malpractice, victims often face significant emotional distress from misdiagnoses or negligent care, leading to long-term psychological impacts like depression and anxiety. Evaluating these emotional consequences is critical for ensuring comprehensive compensation.
For both plaintiffs’ and defense attorneys, effectively assessing and presenting evidence of emotional anguish is crucial in advocating for their clients and achieving equitable outcomes. Effectively contesting or contextualizing these claims with a thorough evaluation can
2 Merjian, Armen H. “Nothing” Garden Variety” About It: Manifest Error and
help mitigate excessive compensation demands and ensure a balanced outcome.2 The ability to evaluate emotional anguish is indispensable for all lawyers, enhancing legal advocacy standards and contributing to a fairer legal system.
The Flaws of Traditional Subjective Evaluation Methods
Assessing mental anguish in legal cases poses significant challenges due to the lack of standardized methods. Traditional subjective evaluations are inconsistent and vary widely among practitioners, leading to disparities in assessments. These evaluations often lack a robust scientific foundation, relying instead on the clinician’s interpretation of the individual’s selfreported symptoms, which can be influenced by various biases.3
Criteria used to assess distress can differ significantly between cases and practitioners, undermining credibility and potentially resulting in unjust outcomes. Subjective evaluations often depend on the rhetorical skills of lawyers and clinicians to persuade judges and juries, which can result in decisions based more on persuasive arguments than on objective evidence.
Introducing QALY: A Game-Changer for Legal Cases
The Quality-Adjusted Life Year (QALY) is a metric that combines both the quantity and quality of life into a single measure. One QALY equates to one year of life in perfect health. The formula is: QALY = Length of life × Quality of life. Developed in the 1960s by health economists, QALY has been adopted in public health and health economics for policy-making and resource allocation, providing a standardized approach to evaluating health outcomes.
Gross Devaluation
Assessment of Emotional Distress Damages.” Syracuse L. Rev. 70 (2020): 689.
Tsipursky, G. (2019). Never Go With Your Gut: How Pioneering Leaders Make the Best Decisions and Avoid Business Disasters (Avoid Terrible Advice, Cognitive Biases, and Poor Decisions). Red Wheel/Weiser.
In the United States, the standard value is $125,000 per QALY, based on the average life valued at $10 million and a life expectancy of 80 years.
Applying QALY to Emotional Anguish
Peer-reviewed studies have quantified the impact of depression on QALY. For instance, a 2017 study published in Health and Quality of Life Outcomes examined data from adults aged 65 and older.4 The severity of depression was measured using PHQ-9 scores, categorizing depression as none/minimal, mild, moderate, and moderately severe/ severe.
The results showed significant QALY loss correlating with depression severity:
NONE/MINIMAL DEPRESSION: 14.0 QALY
MILD DEPRESSION: 7.8 QALY
MODERATE DEPRESSION: 4.7 QALY
MODERATELY SEVERE/SEVERE DEPRESSION:
3.3 QALY
Major depressive disorder led to a loss of 8.3 QALY (a 65% reduction), highlighting the profound impact of emotional distress on quality of life. Every year of major depressive disorder results in a loss of 0.65 QALY, translating to $81,250 per year. Such objective measurements provide clear evidence to support claims for compensation due to emotional distress.
4
QALY in Legal Cases
Using QALY in legal cases provides objective evidence for legal compensation, demonstrating both clinical importance and statistical significance. It helps lawyers support claims for emotional distress damages by offering an objective measure for mental and emotional harm. Applying QALY enhances the credibility and defensibility of cases, providing a robust foundation for legal arguments.
The Daubert standard, a legal precedent for expert witness testimony, assesses the reliability and relevance of such testimony. QALY meets these criteria:
TESTABILITY:
QALY is a testable metric in health economics.
PEER REVIEW:
Extensively reviewed in scientific literature.
ERROR RATES:
Standardized methods minimize error rates.
STANDARDS:
Established guidelines exist for its calculation.
ACCEPTANCE:
Broadly accepted in health economics.
Case Study: Using QALY by Plaintiff’s Attorneys
Jane Doe suffered medical malpractice, leading to major depressive disorder. Her legal team brought in an expert witness to assess the impact of her emotional distress using QALY. The expert testified that her quality of life had been reduced by 65% per year due to depression, resulting in a 0.65 QALY reduction annually. Over seven years, this amounted to 4.55 QALY. Including the expected recovery period, the total QALY loss was 9.1.
Using the standard value of $125,000 per QALY, Jane’s legal team requested $1,137,500 in compensation for emotional distress. The court awarded her $1,100,000 in addition to damages for physical harm. This case highlights how the comprehensive use of QALY to quantify emotional distress can enhance credibility in legal cases, providing a standardized, objective metric.
Case Study: Using QALY by Defense Attorneys
John Doe, an employee in the police department, sued the city for discrimination over a two-year period, leading to major depressive disorder. The city brought in an expert witness to quantify the impact of his depression using QALY. The expert testified that the maximum QALY loss during the discrimination period was 1.3 QALY, with an additional 1.3 QALY during recovery, totaling 2.6 QALY.
Using the standard value, the maximum possible compensation based on QALY amounted to $325,000. The city argued for lower compensation based on this objective analysis and eventually paid $250,000, significantly less than previous similar cases. This outcome demonstrated the power of QALY as a tool in legal evaluations, allowing for precise and objective assessments.
Presenting QALY in Court: Strategies for Success
Presenting QALY in court requires a clear and methodical approach:
DEFINE QALY: Explain its significance, emphasizing how it combines quality and quantity of life.
RELATE QALY TO CASE DETAILS:
Use real-life examples to illustrate key points.
USE VISUAL AIDS: Charts and graphs can effectively depict QALY loss, making data accessible.
SIMPLIFY COMPLEX EVALUATIONS:
Avoid medical jargon and explain calculations step by step.
ENHANCE CREDIBILITY: Present QALY as an objective, quantifiable measure, contrasting it with subjective assessments.
DEMONSTRATE SCIENTIFIC RIGOR:
Reference supporting studies and explain methodologies, highlighting reliability.
By providing a scientifically validated, objective measure, QALY enhances the precision and credibility of assessments, revolutionizing how these complex issues are addressed in court.
Expert witnesses play a crucial role in articulating the scientific basis of QALY, reinforcing its validity as a robust tool for legal evaluations.
Conclusion: Leading the Way to Fairer Legal Settlements
The integration of the QALY metric in legal cases represents a significant advancement in the evaluation of non-economic damages such as mental anguish and emotional distress. By providing a scientifically validated, objective measure, QALY enhances the precision and credibility of assessments, revolutionizing how these complex issues are addressed in court. This tool supports stronger, more defensible cases and ensures fairer outcomes. For lawyers, mastering the use of QALY can be transformative, enabling them to advocate more effectively for their clients and contribute to a more just legal system.
Dr. Gleb Tsipursky wrote seven best-selling books, including the global best-sellers Never Go With Your Gut: How Pioneering Leaders Make the Best Decisions and Avoid Business Disasters (Career Press, 2019) and The Blindspots Between Us: How to Overcome Unconscious Cognitive Bias and Build Better Relationships (New Harbinger, 2020). Dr. Gleb spent over 15 years in academia as a behavioral scientist, with 8 years as a lecturer at UNC-Chapel Hill and 7 years as a professor at Ohio State. He earned his PhD in the History of Behavioral Science at the University of North Carolina at Chapel Hill in 2011, his M.A. at Harvard University in 2004, and his B.A. at New York University in 2002.
