Doctors’ Testimony Key To Non-Economic Damage Awards

Two recent cases tried by this office illustrate the importance of medical evidence to jury awards of non-economic damages. In one case, our client (“Client A”) had suffered soft tissue injuries. The jury awarded $75,000, which was all we had asked for, in non-economic damages.

The doctor who testified as Defense Medical Examiner (“DME doctor”) for the other side said that our client should have recovered fully from her injuries within 8 to 16 weeks after the accident. However, the treating doctor said that our client still suffered and would continue to suffer pain and limitations from the effects of sacroiliac dysfunction.

What are “non-economic damages?”

Oregon law defines non-economic damages as the subjective, non-monetary losses suffered by an injured party for which the law sets no fixed standard for measuring the exact amount. The compensation must be reasonable and the amount awarded is to be based on the jury’s best judgment.

Oregon law requires that the jury consider: the pain, mental suffering, emotional distress and humiliation sustained by the injured person from the time of the injury to the present, and that which it is reasonably probable the person will sustain in the future, as a result of the injuries; any inconvenience and interference with the injured person’s normal and usual activities (apart from activities in a gainful occupation, which are regarded “economic damages”) sustained since the injury until the present and that is reasonably probable the person will sustain in the future; any alleged injury to reputation; and any other subjective, non-monetary loss, that is, not objectively verifiable monetary losses, incurred by the injured person.

In California, juries are instructed to award “reasonable compensation for any pain, discomfort, fears, anxiety and other mental and emotional distress suffered by the injured person and of which the injury was the cause” and to award compensation “for similar suffering reasonably certain to be experienced in the future from the same cause.” The juries are also told that the law prescribes no definite standard by which to fix reasonable compensation for pain and suffering. The jury should exercise “calm and reasonable judgment” and fix damages which are just and reasonable in light of the evidence.

In short, non-economic damages compensate injured persons for past, ongoing and future non-quantifiable results of the injuries, including physical, mental and emotional pain as well as interference with their enjoyment of life.

Client A

Based on his examination of Client A and her medical records about 10 months after she suffered soft tissue injuries to her neck and low back in a motor vehicle accident, the DME doctor testified that he found nothing suggesting a medical need to limit her working or playing activities.

Client A’s treating doctor explained that even though the ligament (“soft tissue”) damage to her sacroiliac joint had reached maximum healing in about 8 weeks, the permanent stretching injury to the ligaments allowed movement in the sacroiliac joint. This resulted in instability in the joint which caused continued back pain and problems bending and/or walking.

The doctor likened the instability caused by the stretched sacroiliac joint ligaments to a loose hinge on a door. If the hinge is loose, the door will not glide smoothly into the door jam. Instead, repeated opening and closing of the door will damage the edge of the door and the edge of the door jam. Similarly, when the sacroiliac joint ligaments are loose, repeated hip movements relative to adjoining joints causes wear damage which produces pain and early degenerative arthritis.

Client A also had permanent soft tissue injuries to her neck and upper back. An injury to her head caused headaches and affected her memory and mental functioning for a period of time, but this had resolved before the trial.

Prior to her motor vehicle accident injuries, Client A had a very active life-style. She was a jogger, worked out at a gym three days a week, and enjoyed hiking and skiing. She lifted weights and even helped build her house, including hanging sheet rock. As a result of her accident, she permanently has pain bending and walking, severely limiting her jogging, hiking and skiing. Sitting or standing for long periods in one position is intolerable, making her unable to drive or sit at a desk or computer terminal for long periods. The pain from her degenerative arthritis becomes worse when it is rainy or cold, which occurs frequently in Klamath Falls.

Client B

In the other case we recently tried, the jury awarded our client (“Client B”) $800,000 in non-economic damages. In a video-taped deposition, the treating physician described in detail Client B’s multiple injuries including two skull fractures and injuries to the nerves coming out of the cervical spine which controlled the muscle function of Client B’s left shoulder, arm and his diaphragm. In addition, the left scapula was “in multiple pieces and was sticking out of the skin” and a crush injury to the chest broke several ribs in multiple places, leaving his chest wall unstable and lungs bruised. The main effects were loss of function of the left arm and inability to breathe normally.

The testimony of a doctor who has seen a patient deal with the effects of accident injuries is valuable for several reasons.

Client B’s treating doctor explained that the abnormal healing of his broken ribs left him with severely restricted chest wall movement making him unable to inflate his lungs normally. This, in addition to loss of diaphragm function on one side due to the nerve damage, left him permanently with severely impaired exercise tolerance and shortness of breath. Also, the severe wasting of the muscles of the left shoulder left him unable to use his left arm or lift his left hand independently. His left hand and forearm had to be held in a sling.

The doctor explained why these conditions are permanent: damaged nerves cannot grow back; and the severe distortion and damage to the ribs caused their failure to heal in the normal position. He also explained that the resultant drop of oxygen level in the blood may lead to premature death due to respiratory or heart failure, and also put him at greater risk of pneumonia.

Practical effects of Client B’s permanent injuries include shortness of breath even after walking only a short distance, such as to the bathroom, making him unable to relax and go back to sleep after getting up in the night. Similarly, he was unable to sleep at higher elevations. Loss of use of his left arm and hand made him unable to button his pants after going to the bathroom or to tuck in his shirt. These are but examples of many far-reaching impacts on every aspect of Client B’s life.

Medical Testimony Vital

In each of the above cases the medical testimony was vital. The testimony of a doctor who has seen a patient deal with the painful and life-changing effects of accident injuries is valuable for several reasons. It corroborates the genuineness of the injured person’s pain testimony. It also can provide a medical and physiological explanation of the basis of the pain and its effects. Finally, the testimony of the treating doctor provides an authoritative statement on the practical impact of the ongoing effects of injuries on the patient’s day-to-day functioning and enjoyment of life, relative to before the injuries.

To insure that your medical testimony is complete and effective, it is important to talk to your patient about his/her limitations so you can determine if they are medically supported and, if so, how you will explain them. Discussing the matter with your patient’s attorney is also very important.

An award for non-economic damages should fairly and reasonably reflect how an injury, occurring in a matter of seconds, has affected and will continue to affect someone for hours, days, months and years, possibly for the rest of the injured person’s life.

How has an injury changed your patient’s life? Your testimony will probably be the most important evidence the jury will consider as it carries out its duty of deciding how much compensation your patient should receive for those losses whose dollar value cannot be calculated precisely.

The article was prepared by Dennis H. Black