By: Paul Vames, Oregon Personal Injury Attorney
They’re known by several different names. Some jurisdictions refer to them as “general” damages. Some legal academic experts refer to them as “hedonic” damages. Here in Oregon, we most often call them “non-economic” damages (which can be a bit confusing for reasons I’ll discuss below).
What am I talking about? I’m talking about the concept of compensating injury victims for losses which do not necessarily involve an outlay of dollars, but which nonetheless are actual losses occasioned by the injury.
Perhaps an example will make the discussion more easily understood. Several years ago I represented an 18-year-old young lady who was struck by a minivan while legally crossing an arterial street within a residential neighborhood in Hillsboro. The young woman was within a crosswalk as “crosswalk” is defined on the Oregon Vehicle Code.
My client was doing nothing illegal. The driver of the minivan simply was not paying attention and entered the crosswalk at the same time that the young woman was crossing. The minivan driver had not intended for the incident to happen. It was purely a case of negligence – the driver was less careful than she should have been. My client and her family were not vindictive; indeed, they were remarkably forgiving of the driver (I would hope I could be as forgiving if it had been one of my own precious daughters).
The young woman’s injury was considerable. After the front of the minivan hit her, she was thrown up onto the front of the vehicle, then into the air. She landed on the pavement awkwardly. Unable to walk, she found herself next to the curb, dazed and in pain. Police and emergency medical personnel arrived on the scene and she was whisked to a regional trauma center where she spent the next 72 hours. She was diagnosed with a concussion, a non-displaced pelvic fracture, bruising of her entire torso and arms, and several deep abrasions about her face and neck. Upon being released from the hospital, the young woman entered a course of rehabilitation which lasted 16 months and included over 120 appointments with medical doctors, orthopedists, neurologists, and physical therapists. The cost of the hospital stay and rehabilitative care exceeded $150,000.00.
The young woman and her family retained our law firm to assist with the process of dealing with the cost and complexity of the incident and its aftermath.
Gladly, after close to a year and a half, my client achieved a nearly-complete physical recovery. The fracture healed; and as the result of her full participation in rehabilitative care and therapy my client regained full mobility and strength. Her ability to bear children was unaffected. She was left with a few mild facial scars and almost no other serious physical deficits. The family was grateful that the long-term result would not be catastrophic.
My client’s medical bills were easily calculated. I simply added up the bills from all the care providers. This was reasonably simple – each bill had a dollar figure at the bottom which set forth the amount charged for the care. The total of all the medical bills represented the measure of my clients economic damages – the amount of the purely financial loss occasioned by the minivan-driver’s fault.
But what of my client’s other losses? What of the pain and disability which prevented my client from engaging in routine life activities such as exercise, recreation, shopping, visiting with friends, and travel? What of the hundreds of hours spent traveling to and in hospitals, medical offices, and physical therapy facilities – hours which would otherwise have been spent engaged in more pleasant and productive activities? What of the time spent worrying whether she would fully recover? What of the inconvenience? What of the physical trauma and pain? None of these things came pre-packaged with an invoice setting forth its cost. Of course they did not – these things represent actual losses which are not purely economic in nature. They are real damages; but they are non-economic damages.
By what measure of justice can someone in my client’s position be fully compensated for these real, yet non-economic losses?
As this very sweet young woman’s lawyer I had to figure a way to make her whole. As much as I wished, I could not find the magic power to turn back time and make it so that the collision had never happened – that would have been an impossibility. And of course I would never be able to find a court in America which would allow me to put my client behind the wheel of a minivan and allow her to run over the driver who had injured my client. Such a method might have provided a perfect equalization of the situation – but it would also have been barbaric and illegal (and naturally, my client would not have wanted to harm anyone). Justice could not be served, in any real or practical manner, by either of these methods.
And so we get to the concept of awarding money damages for losses which really don’t involve money at all. Rather, we make a determination of how badly and seriously an injury victim’s life has been affected by the injury. We ask the following questions: What are the duration and permanency of the injury? What is the severity of the injury? How much inconvenience is involved? How grueling are the rehabilitative and recovery processes? How severe are the disability and effect on the victim’s normal and routine activities? These are the factors which the American civil justice system takes into account when determining non-economic damages.
And then, after these questions are fully, honestly, and objectively answered, we do something that many find unusual and somewhat non-linear. We calculate and place an economic value on these losses which are very non-economic in nature. We compensate an injured victim of negligence with . . . money. Remember, we already determined that we can’t go back in time and we can’t inflict a similar injury on the negligent driver. Some might say that compensating the victim with money damages will not fully compensate the victim at all – I’ve thought this myself! But as with many legal concepts, we must often fashion remedies which are imperfect. The practical reality of the situation is that money is all we really have to compensate the victim for the non-economic loss he or she has suffered. This concept is universally embraced by American courts. It is the model of fairness.
Money damages for non-economic losses and injuries are not the “jackpots” which the insurance industry would have us believe they are. Life has value! The ability to travel and enjoy activity has value! The ability to live pain-free has value! Non-economic losses are real losses. Compensating injury victims for these losses is right and just.
The insurance industry has done a masterful job of trying to poison our American jury pool by mischaracterizing negligence victims and civil trial attorneys as greedy, self-serving beggars. Nothing could be further from the truth. The American civil jury trial system is truly the last and only level playing field. Individual injury victims often have no other forum to have their lives restored. And so, the concept of awarding damages for non-economic losses should not be ridiculed and disparaged. It is an entrenched and logical part of our American justice system.
If You have questions about an accident or injury, Call Harris Law Firm for a Free Consultation.
503-648-4777
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