Types of Damages and Compensation in a Medical Malpractice Case

Damages in a medical malpractice case are similar to those available in other civil injury cases, but often much larger.

In a medical malpractice lawsuit, "damages" is just a way in which the legal system tries to answer the question "What has the injured patient lost?" Ultimately, the answer to this question adds up to a dollar figure, but if you dig deeper, there are two types of damages in a medical malpractice case:

  • damages capable of exact calculation (called special damages or economic damages), and
  • damages not capable of exact calculation (non-economic damages)

Damages Capable of Exact Calculation

Special damages are lost earnings and lost earning capacity (which include employment benefits), medical bills, and other financial losses caused by the medical malpractice injury or harm. Lost earnings and lost earning capacity refer to the amount of earnings (and employment benefits) that you lost and will lose, past, present, and future, because of your injury.

Present Value. Because future lost earnings and/or lost earning capacity involves a calculation of losses that may extend for many years into the future, it has to be calculated in terms of its present value. Present value is a financial concept that involves determining the value of a future stream of income (i.e., your weekly paycheck) as if it were all in a bank account today.

In other words, how much money does your employer need in a bank account today in order to pay you your salary for, say, the next twenty years? This is a complex financial calculation, and is customarily performed by an economist that your lawyer will hire to be an expert witness in your case.

Problems in Calculating Lost Earnings and Lost Earning Capacity. Three problems often arise in making lost earnings claims in medical malpractice cases:

  • you are not working at the time of the injury
  • but for the injury, you had plans to take a new job for more pay
  • you are self-employed

If you are unemployed at the time that you are injured, you can generally claim your earnings from your previous job as your earning capacity as of the time of the injury. If you have not worked for many years, the defense attorney will argue that you have no earning capacity and thus should have no lost earning claim. In this situation, you and your lawyer will have to work together to formulate a plan for making a lost earnings claim. If you are retired, then you have no lost earning claim.

If you got hurt shortly before taking a new job for higher pay, you can generally claim that higher pay rate as your earning capacity as long as you can prove that you had indeed been hired for the new job.

If you are self-employed, the defense attorney will want to carefully examine your business records and tax returns to see whether your actual records support your lost earnings claim. For any type of employee, the general rule is that, whatever you tell the government in your tax returns about your earnings is what you must tell the defense attorney and the jury. If you worked under the table, you are going to have a hard time trying to convince the jury that you should be compensated for those losses.

Special Damages -- Future Medical Bills. Medical malpractice cases often involve catastrophic injuries that will require a lifetime of medical care. The amount of the future medical bills in serious medical malpractice cases can reach well into the seven figures. Lawyers will often retain a special expert witness, called a medical economist, to properly present these types of damages to the jury.

Damages Not Capable of Exact Calculation

Non-economic damages include pain and suffering and mental anguish, as well as what is called loss of consortium. There are no guidelines for determining the value of an injured person’s pain and suffering. A jury cannot look at a chart to figure out how much to award for pain and suffering.

How to Value Pain and Suffering

Valuing pain and suffering can be difficult. You may have read about a “multiplier” in personal injury or medical malpractice cases. Using a “multiplier” means that insurance companies calculate pain and suffering as being worth some multiple of your special (economic) damages. But that is only true up to a point.

Juries do not use multipliers when they are in the jury room trying to determine your damages, and there are many other factors that affect the outcome of a case. Some factors that can greatly impact the value of a plaintiff’s pain and suffering damages are the following:

  • whether the plaintiff is a good or bad witness
  • whether the jury likes the plaintiff
  • whether the jury thinks that the plaintiff lied
  • whether the jury thinks that the defendant or the defendant’s witnesses lied
  • whether the plaintiff has a criminal record
  • whether the plaintiff’s injuries are easy for the jury to understand

One more thing that, sadly, affects the value of pain and suffering in a medical malpractice case is whether the plaintiff is alive and in the courtroom. Juries’ pain and suffering awards can be lower for a deceased plaintiff than for a living, suffering plaintiff. You must ask your lawyer to give you his/her frank opinion about what the jury is most likely to do with your case and your evidence.

Loss of Consortium

Loss of consortium refers to the intangible benefits that the injured person provided to his/her spouse or (in some states) children. It is often thought of as the effect that the injury has on a sexual relationship, but it actually refers to the injury to the entire relationship between the injured person and his/her family. For more detail, see: Compensating The Spouse and Family of The Injured: Loss of Consortium Claims.

Caps on Damages in a Medical Malpractice Case

Some states have passed laws that cap the amount of non-economic damages (pain and suffering) in medical malpractice cases, regardless of how severe the plaintiff’s injury was, and regardless of what the jury would otherwise have wanted to award in the case. The caps vary from state to state, and can be as low as $250,000. To find out of there is a limit in your state, see this page.

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