# Bayless v. Boyer > Kentucky Supreme Court · December 22, 2005 · 180 S.W.3d 439 URL: https://www.frixlaw.com/law-library/cases/9639364 ## Case - **Full name:** Michael J. BAYLESS, II; Michael J. Bayless; And Deborah Bayless, Appellants v. Robert L. BOYER, M.D.; And Walter Eiseman, M.D., Appellees - **Court:** Kentucky Supreme Court - **Decided:** December 22, 2005 - **Citations:** 180 S.W.3d 439; 2005 Ky. LEXIS 382; 2005 WL 3500034 - **Precedential status:** Published - **Opinion:** Dissent by Graves - **Judges:** Roach, Graves, Cooper, Johnstone, Scott, Wintersheimer, Lambert - **Cited by:** 24 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9639364 ## Opinion text GRAVES, Dissenting Justice. Respectfully, I dissent from the majority’s decision to affirm the “zero” verdict for pain and suffering. Michael Bayless was improperly diagnosed with a sprained wrist. In this diagnosis, his doctor told him that the pain from a sprained wrist could be worse than a broken bone, and could last a long period of time. When a physician examines a patient and gives an expert diagnosis, the patient naturally trusts this diagnosis. The fourteen-year-old Bayless, who by all accounts does not seem to be particularly outspoken, did not have any reason to doubt his doctor. Although the pre-print-ed words on his discharge paperwork stated that he should contact his physician if his condition “worsened” or “returned,” his physician directly told him that the pain would persist for a long period of time. Yet, this minor child and his parents were found to be contributory negligent for their failure to second-guess his treating physician sooner. As a result of the improper diagnosis, Michael had an untreated wrist fracture for a two-month period. He played baseball with a fractured wrist that he believed to be a sprain, icing it down and taking over-the-counter medication to alleviate the pain. However, he was ultimately punished for “playing through the pain.” In affirming the jury’s zero verdict for pain and suffering, the majority fails to adequately address several key points which indicate that Michael necessarily experienced more pain and suffering as a result of the improper diagnosis than he would have had his wrist been properly diagnosed as a fracture in the first place. First, in considering Dr. Wyrick’s testimony that there is no significant difference in pain from casting versus surgery associated with treating a fractured wrist, it is important to note that this conclusion only refers to the pain associated with healing of the wrist itself, and does not include the pain associated with the surgical procedure. The procedure involved placing Michael under general anesthesia, cutting into Michael’s thigh, harvesting a portion of his thighbone, and inserting the bone into his wrist with a permanent metal screw. Michael would not have undergone this surgery if the fracture had been diagnosed in a timely manner. The majority dismisses the pain associated "with this procedure because it was “performed under general anesthesia.” Anesthesia, of course, wears off, and when it does, there undoubtedly is pain associated when one undergoes such an invasive procedure. There was uncontroverted testimony from Michael that he was fearful of undergoing the operation, the anesthesia made him vomit, his hip felt like somebody had stabbed him and twisted a knife in his bone, and that his wrist felt like someone had “parked a car” on top of it. By the majority’s rationale, any pain associated with invasive surgery is negligible so long as the surgery itself is preformed under anesthesia (which is the general practice this day and age). The majority also ignores the fact that Michael’s misdiagnosis resulted in a delay of treatment, which in turn caused Michael to endure pain and suffering for an additional two-month period. Although Michael may not have been vocal about his pain, he had a fractured wrist, and definitely experienced pain as a result of it. He certainly would not have played an entire baseball season and postponed treatment for two months if he had known of the fracture from the onset, regardless of whether or not he knew of the fracture at the end of his season. *454 Pain and suffering damages are long recognized by our jurisprudence. However, this case illustrates an unfairness that may arise in calculating these damages. By its nature, pain and suffering is a subjective experience. In addition, pain and suffering is an abstract, albeit real, impairment. The award for pain and damages, then, seeks to measure this abstract harm. It requires jurors to assess the inherently subjective pain and suffering of another, and then determine the economic value of this noneconomic harm. It is difficult for an individual to measure one’s own pain, let alone the pain of another. Yet, jurors are required to measure the pain of another with a dollar amount without clear guidance from the court. Instead, guidance comes from the attorneys who have broad latitude to present evidence of pain and suffering, and suggest how these damages should be calculated. See Randall R. Bovbjerg et. al., Valuing Life and Limb in Tort: Scheduling Pain and Suffering, 83 Nw. U.L. Rev. 908, 913-16 (1989). As a result, pain and suffering awards are unpredictable and varied. Although jurors should have discretion to weigh the facts of a particular case, empirical evidence reveals significant inconsistencies in pain and suffering awards. Bovbjerg, supra, at 917 (analyzing the variance of jury findings on damages in Florida and Kansas City from 1973-1987). As many scholars have noted, this variance and lack of predictability in juror awards runs contrary to the rationality and stability that is a hallmark of the rule of law. See Paul V. Niemeyer, Atoarás for Pain and Suffering: The Irrational Centerpiece of Our Tort System, 90 Va. L. Rev. 1401 (2004); Joseph H. King, Jr., Pain and Suffering, Noneconomic Damages, and the Goals of Tort Law, 57 Smu L. Rev. 163 (2004). There is, of course, no way for jurors to “feel the pain” of a plaintiff, and as a result, “evidence” of such pain is reduced to factors such as how much an individual complains of pain, or the kind of physical activities that the individual performs. Plaintiffs like Michael, who quietly endure pain and persist with their activities, are punished as a result. I believe that a form of scheduling for noneconomic damages such as pain and suffering will result in greater predictability and fairness in awards. See e.g., Bovbjerg, supra. Pain and suffering was clearly established in this ease, thus, I find the “zero” verdict to be clearly erroneous. LAMBERT, C.J., joins this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9639364. Public record. Not legal advice.