Types of Damages in a Medical Malpractice Case

What kinds of losses are typically claimed in a medical malpractice lawsuit, and how are they calculated?

In a medical malpractice lawsuit, "damages" are the civil court system's attempt to answer the question: "What has the injured patient lost?" Ultimately, the answer comes in the form of a dollar figure. There are usually two main types of damages in a medical malpractice case: economic and non-economic.

Economic Damages in Medical Malpractice Cases

Also called "special" damages, economic damages are those that are capable of exact (or close to exact) calculation. That means lost income and lost earning capacity (ability to make a living), cost of medical treatment made necessary by the health care provider's mistake, and other financial losses attributable to the medical negligence. Lost income and lost earning capacity include not just the amount of earnings (and employment benefits) that you've lost, but also what you stand to lose in the future.

Present Value. Because assessment of future lost earnings and/or lost earning capacity requires calculation of losses that may extend years into the future, it usually must be calculated by factoring in 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 to have in a bank account today in order to pay your salary for the next twenty years (if that's how long your earning capacity will be impacted)? This is a complex financial calculation, and is customarily performed by an economist that your lawyer will hire to serve as 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 you were harmed by the health care provider's medical negligence, you can generally claim your earnings from your previous job as your earning capacity as of the date the injury. If you have not worked for many years, the defense will argue that you have no earning capacity, and no lost earnings 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 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 position (and at what pay rate).

If you are self-employed, the defense 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 and the jury. If you were paid under the table at a string of jobs, you are going to have a harder time.

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

Non-Economic Damages in Medical Malpractice Cases

Sometimes referred to as "general" damages, non-economic damages are not capable of exact calculation, and include more subjective kinds of harm like "pain and suffering" and "loss of consortium". Let's look at what these terms mean in the context of a medical malpractice case.

Pain and Suffering

When a patient is harmed by the provision of sub-standard medical care, the physical pain and discomfort they feel is a component of non-economic damages, and so are the mental and emotional effects of the harm. It's not always easy to convert a plaintiff's pain and suffering into a dollar amount, but there are certain factors that weigh more than others. Learn more about pain and suffering in a medical malpractice case.

Loss of Consortium

In personal injury law, "loss of consortium" usually refers to the intangible benefits that the injured person provided to his or her spouse or partner, or (in some states) children. Learn more about loss of consortium claims.

Caps on Damages in Medical Malpractice Cases

A number of states have passed laws that limit or "cap" the amount of non-economic damages a successful plaintiff can be awarded in a medical malpractice lawsuit. These caps vary from state to state, and sometimes include exceptions (or at least higher caps) for cases involving catastrophic harm or death. But laws like these have also been struck down in a number of states in recent years, with courts viewing such caps as unconstitutional restrictions on an injured person's right to a complete legal remedy. For details on the law in your state, talk to a medical malpractice attorney.

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