This is one of those posts that is read only by those who need to know. So first, I am sorry that you find yourself needing to review this information.
There is a lot of misinformation out there. This is a summary of what I’ve learned as an injury attorney in Oregon over the last two decades.
So let’s start with the big picture. Here are three things you need to understand about the Oregon injury system.
1. Nothing that happens here will leave you better off. You are not reading this to get rich and that’s a good thing because that won’t happen. The Oregon system is conservative.
2. The Oregon injury system shouldn’t be used for small injuries or near-misses. While near misses are scary and traumatic, the reality is that resources are limited and need to be available for those who are badly injured.
3. Injury claims stand or fall on three basic elements: 1) fault, 2) “causation;” and 3) harm. That means that compensation is available only if someone else was at fault, that fault caused harm, and the harm was significant.
So how do these principles apply? Motor vehicle collisions provide a good way of illustrating the principles.
1. The system is conservative; you’re not going to get rich
Let’s look at the first one. If you were injured in a motor vehicle collision, you know this truth in a fundamental way. Given a choice between health and money, you would choose health every time. Put another way, you didn’t choose to be in this system. If you didn’t have to worry about your medical bills, or your damaged neck or back, you would be less stressed. And without the pain and limitations, you would be healthier and happier.
If your body worked like it did before the crash, you would be out there living your life and not dealing with the uncertainty that comes with injury. You certainly don’t think of this as a lottery win, and anyone who thinks otherwise probably doesn’t understand your life.
The lottery comments are particularly offensive. When you pay two bucks to play the lottery, you choose the entertainment and the fun. When an inattentive driver takes away your health, you didn’t make a choice, and it certainly cost you more than two bucks. Having said all that, Oregonians are thrifty by nature and rarely provide large money assessments when cases go to trial. They expect you to get by on less and to not be defeated by your challenges. You understand that, of course. The rare cases of large damage assessments simply mean that the consumer is badly injured. That’s cold comfort, at best.
2. Near misses
I imagine this has happened to you. A crazy driver blows a stop sign or a red light. Or maybe an inattentive driver turns in front of you. Through a combination of your vigilance, skill, and luck, you manage to avoid the collision. “That jerk could have killed me,” you think. And you’re right of course. Still, we don’t dabble in near misses. In Oregon, we expect you to gather yourself and go on. The same is true of trivial injuries. The bruise that heals in a few days isn’t worth troubling over. We teach our young kids to pick themselves up and dust themselves off and go on. The same is true here.
3. The three elements
To pursue a claim, we must prove that someone’s fault caused your harms and losses. Sometimes it’s obvious. A drunk driver runs a stop sign and plows into your car. You’re badly injured. Medical expense, time lost from work, and uncertain future of pain and disability result. That’s the easy case.
But cases are often harder than all that. Fault is often the easiest part of the case. It is proving the connection between the fault and the harms and losses and the extent of those harms that gets harder. So, for example, sometimes the injured person has been injured before. After all, few of us get through life without some prior history. The at-fault driver will often argue that your neck injury was “actually” something that existed before. The law says that the fact you were more susceptible doesn’t let the unsafe driver off the hook. But it’s easy to sow doubts.
This is particularly challenging when, for example, a doctor makes an error and a patient suffers profound injury. The error part is generally the easy part of the case. But showing how the error led to the result is hard, especially when the patient was sick or otherwise compromised to start.
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That’s enough for this post. There are often many challenges in pursuing an injury case, so don’t mistake this summary for all the detail that goes into investigating and proving a claim. Want more? Part 2 is here. And Part 3 is here.
David Sugerman
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