How to prove mental anguish and pain and suffering in Texas medical malpractice cases

For many victims of medical malpractice, the worst problems that they must deal with are those that are tough to attach a dollar sign to. I’m talking about things like mental anguish and pain and suffering.

Under Texas law, these types of damages are lumped together in a category called non-economic damages. As result of the 2003 round of tort reform in Texas, non-economic damages are subject to caps.

No matter how severe a plaintiff’s mental anguish or pain and suffering may be, the maximum amount that can be recovered for all non-economic damages against any number of doctors or other human health care providers is $250,000. When it comes to hospitals and facilities, they are also $250,000 per hospital or facility, up to a maximum of $500,000. This means that the maximum non-economic damages in any Texas medical malpractice case is $750,000, if there’s at least one doctor and two hospitals named as defendants in the lawsuit.

Beyond the harm of damages caps, there is the additional challenge for plaintiffs to prove the amount of their mental anguish and pain and suffering. This is inherently difficult to do because it’s hard for anyone, including the jury, to comprehend the severity of mental anguish or pain and suffering that another person is experiencing. On top of that, it’s up to the jury to assign a dollar value to these types of damages.

To assist the jury in answering this important question, we ask our clients to provide us with some additional information that puts mental anguish and pain and suffering into perspective. We find this useful to go over before depositions and trial testimony.

Here are some of the ways that injured plaintiffs see their lives change:



How long does it take you to fall asleep?

If you have difficulty, what do you do to help yourself go to sleep?

Midnight awakenings:

Once you are asleep, do you stay asleep?

If you awaken in the night, how long does it take you to go back to sleep?

Early morning awakening:

Do you awaken before you need to in the morning?

How early do you wake up? What you do then?

Are you unusually tired or fatigued and have difficulty waking up?

Nightmares or other sleep disorder:

Are you troubled by any disturbing dreams?

Are you aware of, or has anyone told you of anything else unusual about your sleep pattern?


Eating pattern:

Do you get hungry?

Does food taste good to you?

Do you find yourself eating in response to feeling anxious or sad?

What other changes have occurred in your eating pattern or experience customer


Have you lost or gained any weight?

Have you intended to lose or gain weight?

Energy and Initiative

How often do you feel fatigued?

Do you have the energy to do the things that you need to do?

Do you feel restless or hyper?

Describe any difficulty that you are having in completing tasks that you have started.

Are you procrastinating on things more now?


Are you able to focus on what you are read?

Are you able to follow and keep up with the plot when you’re watching television?

Does your mind wander at work?

Do you lose track of what others are saying when they are talking to you?


Has there been any change in how often you bathe, shampoo your hair, brush her teeth, or shave?

Has been any change in the energy or care that you devote your appearance?

For women: Has there been any change in the time that you spend applying makeup, fixing your hair, or ironing your clothes?

Is there been any change in the clothes you wear on workdays or weekends?


Have there been any changes in how you feel about being around other people?

What changes have occurred and how often you call friends, get together with friends, or go to church, clubs, or group recreation?

Do you isolate yourself or feel withdrawn from others more often?

Have there been any changes in your ability to open up or confide in others?

How has your relationships with family members changed since this incident?

What changes have occurred in your daily routine with your children?

Describe any changes in your effectiveness as a parent that have occurred since this incident.

What changes in use since this incident would your family members describe?


How is your relationship with your spouse changed since this incident?

How would your spouse say that you are different now?

What is changed about the nature or frequency of conflicts or arguments with your spouse?

How is your sense of closeness to your spouse changed?

What, if any, change has occurred in the level of your desire for sex/intimate relationships?

What, if any, change has occurred in the frequency of intimate relationships?

What, if any, problems or dysfunctions in sexual functioning for you or your partner have occurred since this incident?


Has there been any change in your enjoyment or passion for activities that you have found fun or satisfying?

What hobbies or activities have you enjoyed in the past?

What changes has there been since the incident in the frequency did you engage in these activities?


Have you fallen behind in any household responsibilities, such as cleaning, washing, bill paying, yard, car maintenance, etc.?

Are you late to work more often than before this incident?

Have you missed days of work more frequently than you did before the incident?

Have you missed any work deadlines or failed to complete any assignment?

Have you had any problems not keeping up with things at work?

In what ways even less productive on your job since this incident?

How have others notice that you are less productive?

What differences do you think that your boss, coworkers, or customers would describe in how much you are getting done now or the quality of your work?

Have your feelings changed about the people with whom you work?

Are you more irritable with the people with whom you work?

Have you had any recent conflicts with anyone at work?

Is your employment, bonus, or promotion in any jeopardy?

Have you had any change in income since this incident?

How is your sense of satisfaction with your job change since this incident?

Health and Wellness

Are you taking any medications? Have your medications changed?

Has there been any change since this incident and how religiously you take your prescription medications?

Were you involved in exercising or any other wellness activities prior to the incident? Has there been any change since this incident?

Physical Symptoms

Have there been any changes in your health status since this incident?

What problems have you been to the doctor for since this incident?

Since this incident, have you experienced headaches, nausea, indigestion, diarrhea, high blood pressure, chest pain, back spasms, or other pain?


Describe your general mood from day-to-day.

How often is your mood depressed?

How often do you have crying spells?

What plans do you have for your future?

How has your perception of your future changed as result of this incident?

Do things seem hopeless or futile to you?

How is your self-esteem at this point?

Do you have any feelings of guilt or self blame?

Since this incident have you had any thoughts of killing yourself?


Do you ever feel anxious or restless?

You ever feel panic?

What, if any, activities, places, or situations cause you to feel anxious?

Do you find yourself avoiding any places or activities because you feel anxious or uncomfortable?

Has there been any changes in your experience of well-being?

Do you ever experience excessive sweating, trembling, dizziness, lightheadedness, palpitations, or a racing pulse, or muscle tensions or spasms?

We can help

If you’ve been seriously injured because of medical errors or poor healthcare, then contact a top-rated skilled Houston, Texas medical malpractice lawyer who can help evaluate your potential case. An experienced attorney in this area can help you prove even the difficult aspects of your damages, such as pain and suffering and mental anguish.

Robert Painter
Article by

Robert Painter

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm Medical Malpractice Attorneys in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him for a free consultation and strategy session by calling 281-580-8800 or emailing him right now.