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Banks v. Sunrise Hospital12/17/2004
to the three common compensatory damages of lost earnings, medical expenses and pain and suffering. These jurisdictions believe that compensating a victim for hedonic loss in a separate award prevents inadequate awards to the victim and facilitates judicial review. Other jurisdictions permit the trier of fact to treat hedonic loss as a factor in determining general damage awards or pain and suffering awards. These courts reason that, because of the intangible nature of hedonic loss, separating hedonic loss into a distinct category will produce duplicative damage awards or overcompensate the victim.
For example, in Huff v. Tracy, a California court determined that the injured plaintiff, who suffered severe lacerations to his tongue during an automobile accident that permanently impaired his sense of taste, was entitled to argue, as one factor for a pain and suffering award, that he should receive compensation of his loss of enjoyment of life. The court noted that California did not have a "rule restrict a plaintiff's attorney from arguing this element [of damages] to a jury." The court analogized the treatment of hedonic loss to the treatment of mental damages, another element of a pain and suffering award of damages.
We agree with California and those jurisdictions permitting plaintiffs to seek compensation for hedonic loss as an element of the general award for pain and suffering. Like California, Nevada does not restrict a plaintiff's attorney from arguing hedonic damages. Moreover, by including hedonic losses as a component of pain and suffering, we perceive no problem of confusion or duplication of awards by the jury. Accordingly, we hold that hedonic damages may be included as an element of a pain and suffering award of damages.
Here, however, the district court permitted the jury to award hedonic damages as a separate and distinct damage award, rather than including hedonic loss as a component of the pain and suffering damages award. Although the district court erroneously permitted the jury to give Banks a separate award for hedonic damages, the error was not prejudicial because the jury could have easily added the value of the hedonic loss to the pain and suffering award. Therefore, the record does not reveal that the hedonic damages award was duplicative or excessive. Accordingly, the error was harmless.
Directed Verdict Motion
At the conclusion of the trial, Sunrise moved for a directed verdict. NRCP 50(a) states that a motion for a directed verdict shall be denied " f the evidence is sufficient to sustain a verdict for the opponent." The district court may not judge the credibility of the witnesses or the weight of the evidence. Further, " f there is conflicting evidence on a material issue, or if reasonable persons could draw different inferences from the facts, the question is one of fact for the jury and not one of law for the court." In ruling on a directed verdict motion, "the district court must view the evidence and all inferences therefrom in a light most favorable to the non-moving party." We apply this same standard on appeal.
To recover for medical malpractice based on negligent maintenance of equipment, Banks had to demonstrate that Sunrise's conduct departed from the accepted standard of medical practice, that Sunrise's conduct was both the actual and proximate cause of James's injury and that James suffered damages. The adverse inference instruction, discussed above, permitted the jury to infer that, had Sunrise preserved the equipment, it would have been found in a defective condition. The uncontroverted evidence at trial demonstrated that the anesthesia equipment was not preserved. Banks also introduced expert phys
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