What are Non-Economic Damages?
Non-economic damages are damages that are intangible, and arise out of a bodily harm. The
most commonly referenced type of non-economic damages are “Pain and Suffering.” Pain and
suffering can be both mental and emotional suffering. The purpose of non-economic damages is
to redress the ways a person might suffer beyond just what they have paid out of pocket to heal
their body. Suffering an injury or the death of a love one causes a mental impact on the family ofthe injured person, as well as the victim of the injury. Non-economic damages are the means our system of justice has to compensate the loss that cannot be quantified by lost earning capacity and medical bills. Non-economic damages redress the mental pain and anguish from personal injuries and other civil wrongs.
Examples of non-economic damages include:
- Loss of consortium: a term used with respect to torts. It refers to the lost benefits from a
family relationship due to injuries caused by the defendant. Most commonly, this means
that a spouse is entitled to damages for the loss of their spouse’s relationship.
- Loss of care or assistance: loss of care, assistance, protection or guidance, is a type of
non-economic damage to address the loss of a caretaker or provider, which cannot simply
be quantified by economic damages.
- Loss of education or opportunity: this form of non-economic damages is intended to
compensate you for a career that you can no longer pursue due to an injury that you
suffered. An example, if the plaintiff had been accepted to law school, but because of an
accident experienced severe head trauma, such as a Traumatic Brain Injury (“TBI”),
which permanently damaged their brain, they could sue for the loss of education or
opportunity to go to law school.
- Post-Traumatic Stress Disorder: PTSD is a form of non-economic damage, because the
accident has caused an impact that negatively impacts the accident victim’s ability to
perform normal tasks. If the plaintiff was injured in a bus accident and can no longer
travel on a bus without experiencing anxiety or panic attacks, then that can be taking into
consideration for why the plaintiff should recover more damages in their injury case,
specifically non-economic damages.
- Loss of enjoyment of life: this form of non-economic damages is intended to
compensate the reduced quality of life or ability to enjoy life. It is difficult to quantify
this type of damage; however, it is a serious loss that must be compensated, if a victim
has suffered an injury that will impact the rest of their life and how much of it they can
do. This is common for very extreme injuries where the plaintiff requires constant care or
is even permanently hospitalized.
- Disfigurement: no one can quantify the loss and damage caused by suffering an injury
that will follow you the rest of your life, such as a scar across your face from broken
glass that will never heal or a burn victim. This is the type of non-economic damages
designed to attempt to compensate a victim for such a traumatic and painful event.
Pain and Suffering
Physical pain and suffering usually come along with economic damages such as medical bills,
but can also include non-economic damages. For example, if a young man is a professional
marathon runner and gets into a horrible car accident which renders him unable to walk, he can
sue not only for the monetary losses that he suffered, but also for the loss of opportunity to
continue competing in races.
Mental pain and suffering, on the other hand, would address non-economic damages to the
marathon runner’s mental state. He could sue for loss of enjoyment of life or anxiety attacks thathe gets when he is in a car as a result of the accident.
Can I Recover for Pain and Suffering in Oklahoma?
Yes, in Oklahoma, you can recover non-economic damages for pain and suffering after an
accident or after you have been the victim of a tort. “Pain and suffering” refers to an available form of non-economic damages that are sometimes awarded to personal injury plaintiffs if they win their case or reach a settlement. Pain and suffering is categorized as non-economic damages because the damage itself is not easily quantifiable, since it is an intangible harm. For example, it
is easy to put a value amount on the damage that a person suffers when they lose wages (just add
up the lost amount of money), but it is hard to place a value amount on how much someone’s
mental or physical anguish is worth.
How do you Prove Pain and Suffering?
Sometimes proving pain and suffering can be easy. If there are medical records that state that the plaintiff requires long-term physical therapy or records that show an employee cannot perform their job abilities as a result of the injury that they suffered. A person can also give testimony about their pain, but it is less effective in a court setting than if the pain is documented in a medical form.
When possible, always get a medical opinion and assessment on your mental injuries or talk to
your lawyer about how to best prove your pain and suffering.
Juries are mostly in charge when it comes to determining how much to award a plaintiff in their
suit for pain and suffering. A jury is likely to give more or less depending on factors such as the sincerity and credibility of the testimony and the level of injury the plaintiff has and continues to endure. Personal injury attorneys who know how to develop and tell your story are more effective in convincing the jury to compensate you for your pain and suffering and other forms of non-economic damages. An experienced personal injury attorney can advise your on how to
prepare yourself for deposition, for court, and help tell your story of the pain and suffering you have endured since your accident or you or a loved one suffered an injury.
How is Pain and Suffering Calculated?
To calculate the amount of pain and suffering awarded by the jury; three separate findings must
be made based on the facts in the case:
- The total compensatory damages recoverable
- The total economic loss
- The total non-economic loss
There are two common methods for calculating pain and suffering: the multiplier method and the
per diem method.
The Multiplier method is based on mathematics: it takes the past, present, and future medical
bills and multiplies it by some number usually between 1.5 and 5, depending on the severity of
the injury. Then the total economic damages are added, and the sum is the value of the claim.
Insurance companies will usually use this method to come up with a settlement amount.
The Per Diem method is appropriately named because it accounts for the daily pain and suffering
that the plaintiff will suffer before they recover. It seeks to turn that suffering into an amount of money but is sometimes ambiguous.
Does Oklahoma Have a Damage Cap on Pain and Suffering?
No, recently, the Oklahoma Supreme Court ruled that the previous cap on non-economic
damages for personal injury cases in Oklahoma was unconstitutional. In that case, a man was hit
by a falling crane and had it left arm amputated. The man was awarded $6 million in pain and
suffering but their reward was reduced because Oklahoma capped the pain and suffering awards
The controversy of this damage cap made it up to the Supreme Court and the justices ruled that it created a grey area with respect to its constitutionality because it treats people who survive their injuries differently than people who do not. Since the cap was deemed to be arbitrary, it was overturned by the court. This means that plaintiffs have an unlimited amount that is possible for them to recover for pain and suffering in Oklahoma.
How do I Recover for Mental and Emotional Distress?
In Oklahoma, there are two ways a person can recover for their mental and emotional distress:
first, they can sue separately for the emotional trauma they have endured, or they can make the
emotional trauma a part of the damages that they seek to recover if they win. An example of the
former is if, during an assault and battery, the plaintiff experiences severe emotional distress. The plaintiff can sue for that emotional distress separately from the assault and battery. To do this, the wrongful act that injures the plaintiff must be intentional and extremely outrageous.
The second way to recover for mental and emotional distress is if the plaintiff wins their personal injury suit and their recovery includes non-economic damages for emotional distress or mental distress. If the plaintiff won the suit for assault and battery and included in their recovery for the emotional trauma. This requires that the emotional distress flows naturally from the wrongdoing, and it may not be intentional or malicious. The distress may also not be severe, but it must be connected to a physical injury experienced by the plaintiff. These actions include Intentional Infliction of Emotional Distress (IIED) and Negligent Infliction of Emotional Distress (NIED).
What is Intentional Infliction of Emotional Distress?
Intentional Infliction of Emotional Distress (“IIED”) is an intentional tort. To establish IIED in Oklahoma, a plaintiff must demonstrate:
- That the defendant acted intentionally or recklessly. Intentional conduct requires the
defendant intended to inflict the emotional anguish on the plaintiff. Reckless conduct
means the defendant had a conscious disregard for the danger and consequences of his or
her actions, which foreseeably would cause the plaintiff emotional distress.
- That the defendant conduct was extreme and outrageous. This is a question of law which
will be resolved by the court and not the jury. The court is responsible for deciding
whether the evidence in the case is extreme and outrageous.
- That plaintiff experienced emotional distress. In order to sue for IIED, the plaintiff must
have actually experienced emotional distress—this means that the possibility of
emotional distress is not enough.
- That the emotional distress was severe. This is a question left to the jury, and it is best to talk to an experienced lawyer to determine if the emotional distress you have in your case
is likely to qualify as “severe” to a jury.
What is Negligent Infliction of Emotional Distress?
NIED is a not an independent tort but is a negligence tort. This means the action for NIED but
meet all the elements that regular negligence does, and the only difference is the injury. For
NIED, the injury is the emotional distress, which is a form of non-economic damages.
The elements for Negligent Infliction of Emotional Distress include duty, breach, causation, and
injury. It is the “injury” element that makes NIED its own type of tort, because the injury in an NIED action is emotional distress. A limitation on this however is that the injury must be
foreseeable. For example, if a person experiences extreme emotional distress because a waiter
served them Pepsi instead of Coca-Cola, it will not be foreseeable.
Symptoms of Emotional Distress
- Anxiety and stress
- Helpless feelings
- Suicidal thoughts
Physical Manifestations of Emotional Distress
- Lack of sleep
- Lethargy or physical fatigue
Contact – Cannon & Associates: Oklahoma Personal Injury Advocates
Experience matters when you or a loved one has experienced an injury. Non-economic damages are a
serious source of pain and suffering for injury victims. It is important to know the Oklahoma personal injury lawyer you hire is dedicated to your cause and versed in all aspects of damages, non-economic damages, and personal injury law in Oklahoma. Cannon & Associates is dedicated to Fierce Advocacy
and will fight for your rights. Going through the trauma of an accident and dealing with those
consequences is tough, but Cannon & Associates is here to support and guide you through all of your options, from beginning to end. We are dedicated to helping you resolve your dispute in the most advantageous setting and are ready to help you get the relief you need.
Contact Cannon & Associates to protect your rights and fight for fair compensation in your injury case. Complete the CONTACT FORM ON THIS PAGE NOW or CALL at 405-657-2323 for a free confidential case evaluation.