What Are Non-Economic Damages In A South Carolina Personal Injury Case?

In cases of personal injury or wrongful death, there are often two types of compensation (or damages) that a plaintiff may recover. One is economic damages, which have a clear monetary value, such as medical bills and lost wages. The other type is non-economic damages, which are less tangible but can be assigned a dollar amount. Examples of this type are pain and suffering, disfigurement, and loss of companionship.

What other losses can be covered by non-economic damages? What is the value of this type of damages? Here is an overview.

Pain And Suffering, And Other Non-Economic Damages

Under South Carolina law, the following may constitute non-economic damages:

• Pain
• Suffering
• Physical impairment
• Inconvenience
• Disfigurement
• Mental anguish
• Loss of enjoyment of life
• Emotional distress
• Loss of consortium (companionship of a spouse)
• Loss of society and companionship
• Injury to reputation
• Humiliation
• Fear of loss, illness, or injury
• Other non-monetary damages.

Pain and suffering are two of the most common non-economic losses in injury claims. Though these cannot be measured monetarily, they are very real experiences that injured persons go through. This is why the law considers them compensable.

An award for pain and suffering compensates the injured person for the physical discomfort and the emotional response to the sensation of pain caused by the injury itself. Separate damages are given for mental anguish where the evidence shows, for example, that the injured person suffered shock, fright, emotional upset, and/or humiliation as the result of the defendant’s negligence.

On the other hand, damages for “loss of enjoyment of life” compensate for the limitations, resulting from the defendant’s negligence, on the injured person’s ability to participate in and derive pleasure from the normal activities of daily life, or for the individual’s inability to pursue his talents, recreational interests, hobbies, or avocations.  For example, an award for the diminishment of pleasure resulting from the loss of use of one of the senses, or for a paraplegic’s loss of the ability to participate in certain physical activities, falls under the rubric of hedonic damages. …”loss of enjoyment of life” damages compensate the individual not only for the subjective knowledge that one can no longer enjoy all of life’s pursuits, but also for the objective loss of the ability to engage in these activities.

When discussing pain, Plaintiffs may claim for pain damages based solely on what they say they are experiencing. However, to have a persuasive case, they would likely need to provide medical records and doctor’s testimony supporting this claim.

When discussing pain it is important to describe it with specificity. The lawyer should inquire triggers or activities that brings on the pain. Ask how long it lasts, how frequently it occurs, how intense it is experienced. Most importantly, the lawyer must understand how the pain interferes with the daily activities of living. What activities are now limited and in what way. What strategies are used to manage the pain. Who can testify to the plaintiff experiencing pain. It is one thing to say “I have pain”. It is another to prove it to jury in a persuasive manner.

How Non-Economic Damages Are Calculated

Many injured individuals and bereaved families ask how much they could claim for their non-economic losses. There is no hard-and-fast rule on how to calculate their value. In general, judges and juries will have to consider the many relevant factors in the injury, such as the level of loss, the degree of negligence that led to it, and its projected effects on the claimant’s future.

For pain and suffering, there are two methods that courts may use to objectively compute the value. One is the ‘multiplier’ method, where the plaintiff’s economic (monetary) damages is multiplied by a specific number. This number depends on factors such as the severity of the injury and its impact on the plaintiff’s life.

If, for example, economic damages amounted to $50,000, and the multiplier assigned is two, the computed value of pain and suffering would be $100,000.

Another method is referred to as ‘per diem’ as it aims to pay an assigned dollar amount for each day the claimant has to suffer the pain. For example, take the case of an individual injured in a motor vehicle wreck who now suffers permanent injury. There is testimony the person suffers pain each day, particularly when attempting activities of daily living. Say the person is female and 30 years of age. Evidence can be admitted into court from the South Carolina mortality tables, South Carolina Code Section 19-1-150 which lists the life expectancy for such a person as 51.56 years. That’s the equivalent of 18,819 days or 301,104 waking hours. Depending on the severity of the case, an appropriate hourly “wage” could be used to arrive at the value of the permanent harm.

The court does not require an injured plaintiff to prove his damages to a mathematical certainty but to express the harm as more than mere conjecture. Whether any of these methods of calculation are used depends on the case and the thought process of counsel.

Limits To Non-Economic Damages In South Carolina

There are time constraints when a case must be brought and limits to the amount of compensation you may claim for non-economic losses. In South Carolina, there are statutes of limitations or deadline for personal injury lawsuits. For example, claims against a governmental entity may need to be filed within two years of the injury. Claims against a private actor may need to be filed within three years of injury. In a motor vehicle wreck figuring out the statute of limitations may be fairly straight forward. But it may be more nuanced in say, a medical malpractice case. Typically, the statute of limitations may run within a set period of time from when the claimant knew or should have known, he had a claim against someone. This is called the discovery rule. It has an objective element to it: when a reasonable individual would know they had a claim. It also has a subjective element: when the person actually knew herself she had a claim. Deciding when an individual knew or should have known they had a potential claim can involve a thorough investigation of the facts of the case. Failure to comply with the statute of limitations may result in dismissal of any later filed suit regardless of merit. The statute of limitations can be a very tough sanction. There are some exceptions to the statute of limitations. Whether they apply must be carefully analyzed by your attorney.

Not to be confused with the statute of limitations is the statute of repose. For medical malpractice actions there is a six year statute of repose. That means regardless of discovery, no action can be commenced six years after the alleged negligence. It is just a hard and fast rule. There is an eight year statute of repose against a home builder in a construction case.

Further, your non-economic compensation could be capped depending on what or who caused the injury.

One limit is if the injury involved medical malpractice. If the malpractice claim is against a single healthcare provider in private practice or a private institution, a claimant may be limited to not more than the current limit of approximately $440,000. However, there are rules that may allow multiple claimants (for example, beneficiaries in a wrongful death claim) to each have recovery up to the cap. Further, there are rules that may allow stacking of the cap depending on the number of defendants involved in the case.  A careful and knowledgeable medical malpractice attorney will aware of these rules and can work to maximize the effective cap in each case.

Another limit arises if the injury was caused by a government entity or employee. In such a claim, the total damages cap – including both economic and non-economic damages. Varies. If a physician is involved in the negligent act the cap is $1.2 million. If a non physician is involved the cap may be $300,000 or $600,000 depending the types of causes of action that are alleged.

Establishing The Amount You Deserve For Economic Losses

Economic losses are typically more tangible than non-economic losses. Medical bills and lost income come with their own “price tag” and are often easy to calculate. But in larger cases, the presentation of economic loss becomes more sophisticated. If there is permanent injury and future economic loss, counsel may hire a vocational assessor and an economist. These experts may help describe the resulting loss of income and project that loss over the work life of the injured person. The economist can also reduce the projected number to present value as required by law.

Further, it may be necessary to hire a life care planner to assess a permanently injured plaintiff’s future medical needs and their cost. Depending on the case, a life care planner may determine, based on physician recommendations, whether the plaintiff will need future medical interventions, and if so, how often and beginning when. The life care planner would price the necessary medical treatment and describe the frequency of service and the duration in years of the service. The economist can take the life care plan, add up all the costs of future treatment, discount to present value, and provide evidence of the plaintiff’s future economic loss.

To best describe your case, get the help of an injury lawyer who is proven successful in obtaining the rightful compensation for claimants.

Punitive Damages

Economic and non-economic damages are referred to as “actual damages” because they are intended to cover the plaintiff’s actual losses due to the injury. Outside of this, there is another type of damages called punitive damages. These are not meant to compensate the injured but to punish the wrongdoer. They apply only in cases involving reckless or grossly negligent  behavior from the defendant. Punitive damages are rarely awarded. When they are, there is a cap of $500,000 or three times the plaintiff’s actual damages, whichever amount is greater. However, there are exceptions to this limitation. Punitive damages cannot be assessed against governmental actors.

In South Carolina, contact the law firm of Kassel McVey. We can help you effectively claim for your non-economic losses, or simply answer your questions regarding your claim. Your initial consultation is completely free. Call us today at (803) 256-4242.