Last year, the Oklahoma Legislature, with the passage of the Comprehensive Lawsuit Reform Act, made changes to the way damages are awarded in personal injury cases in Oklahoma. This act has implications on the rights of Oklahoma residents when it comes to personal injury lawsuits and claims. Therefore, all Oklahoma citizens should be made aware of the change in the law.
This new law places a limit or a cap of $400,000 on non-economic damages in any lawsuit where bodily injury has been alleged. Non-economic damages for example would be in the nature of damages for physical pain and suffering, mental pain and suffering, physical impairment and disfigurement. This new law negatively affects the rights of a portion of Oklahoma's citizenship including minor children, retirees and individuals who are unemployed. The reason being is that these individuals are unemployed and have no loss of income claim. Therefore, their damages may be limited to medical expenses and up to $400,000.
However, the "saving grace", if you want to call it that, is that this statute provides situations when the cap or limit can be lifted. These situations are as follows:
1. A Plaintiff suffers permanent or substantial physical abnormality, disfigurement, loss of use of limb or substantial impairment to a major body organ or system.
2. A Plaintiff suffers permanent physical functional injury that prevents them from being able to care for themselves and perform life-sustaining activity.
3. The Defendant's acts were with reckless disregard, grossly negligent, fraudulent or intentional and with malice.
As to personal injury litigation against a physician, both the judge and the jury must find one of the conditions above by clear and convincing evidence. This is a higher burden to meet than the preponderance of evidence standard. In suits against non-doctors (all other suits; car accidents, truck accidents, motorcycle accidents, slip and falls, dog bites etc…), a jury must find one of the conditions by a preponderance of the evidence. Jurors will not be advised of the cap or limit at any time during the trial. However, they will be asked to return a verdict with answers to questions based on the above 3 situations.
This new law does not apply to lawsuits filed under the Governmental Tort Claim Act; personal injury actions against governmental entities such as a fire department or police department and does not apply to lawsuits for wrongful death.
It is important to note that this new personal injury provision, which became law on November 1, 2009, does not take effect until a Health Care Indemnity Fund is created and funded by the State. It is unknown at this time if and when a Health Care Indemnity Fund will be created and funded by the State.
In addition to the above, another important provision is contained in this new law. Evidence of a person's failure to wear a seat belt will now be made part of the evidence in car accident and truck accident lawsuits. Oklahoma's old law provided that a driver's use or non-use of a seat belt was irrelevant when it came to car accident cases. This new law provides that if an operator of a vehicle does not wear a seat belt and is involved in an accident, the failure to wear a seat belt may be used against that person in a car accident lawsuit. In essence, although the person did not cause the accident, he or she may be blamed for his or her own injuries because of the non-use of a seat belt. Therefore, it is now extremely important to wear a seat belt while operating or riding as a passenger in a car or truck.
This new law places a limit or a cap of $400,000 on non-economic damages in any lawsuit where bodily injury has been alleged. Non-economic damages for example would be in the nature of damages for physical pain and suffering, mental pain and suffering, physical impairment and disfigurement. This new law negatively affects the rights of a portion of Oklahoma's citizenship including minor children, retirees and individuals who are unemployed. The reason being is that these individuals are unemployed and have no loss of income claim. Therefore, their damages may be limited to medical expenses and up to $400,000.
However, the "saving grace", if you want to call it that, is that this statute provides situations when the cap or limit can be lifted. These situations are as follows:
1. A Plaintiff suffers permanent or substantial physical abnormality, disfigurement, loss of use of limb or substantial impairment to a major body organ or system.
2. A Plaintiff suffers permanent physical functional injury that prevents them from being able to care for themselves and perform life-sustaining activity.
3. The Defendant's acts were with reckless disregard, grossly negligent, fraudulent or intentional and with malice.
As to personal injury litigation against a physician, both the judge and the jury must find one of the conditions above by clear and convincing evidence. This is a higher burden to meet than the preponderance of evidence standard. In suits against non-doctors (all other suits; car accidents, truck accidents, motorcycle accidents, slip and falls, dog bites etc…), a jury must find one of the conditions by a preponderance of the evidence. Jurors will not be advised of the cap or limit at any time during the trial. However, they will be asked to return a verdict with answers to questions based on the above 3 situations.
This new law does not apply to lawsuits filed under the Governmental Tort Claim Act; personal injury actions against governmental entities such as a fire department or police department and does not apply to lawsuits for wrongful death.
It is important to note that this new personal injury provision, which became law on November 1, 2009, does not take effect until a Health Care Indemnity Fund is created and funded by the State. It is unknown at this time if and when a Health Care Indemnity Fund will be created and funded by the State.
In addition to the above, another important provision is contained in this new law. Evidence of a person's failure to wear a seat belt will now be made part of the evidence in car accident and truck accident lawsuits. Oklahoma's old law provided that a driver's use or non-use of a seat belt was irrelevant when it came to car accident cases. This new law provides that if an operator of a vehicle does not wear a seat belt and is involved in an accident, the failure to wear a seat belt may be used against that person in a car accident lawsuit. In essence, although the person did not cause the accident, he or she may be blamed for his or her own injuries because of the non-use of a seat belt. Therefore, it is now extremely important to wear a seat belt while operating or riding as a passenger in a car or truck.
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