In a medical malpractice lawsuit, "damages" are an attempt to answer the question: "What has the injured patient lost because of the health care provider's mistake?" The answer comes in the form of a dollar figure that's meant to compensate the patient for all harm done by the malpractice. Here's what to know at the outset:
It's no surprise that a patient's damages drive the value of a potential medical malpractice case, but other factors carry significant weight too, including:
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 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 medical malpractice case.
A few issues can arise in making lost earnings claims in medical malpractice cases:
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 therefore 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.
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.
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.
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.
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.
Like every injury-related legal claim, each medical malpractice case is unique, which makes it impossible to know:
Most of these cases come down to the medical expert witnesses for both sides, their qualifications, and their ability to show exactly how and why the defendant health care provider's conduct either met the appropriate medical standard of care (on the defendant's side) or fell short of that crucial standard (on the patient's side).
It's important to note that a medical malpractice claim can reach a settlement at any point, even without a lawsuit being filed. Learn more about the timeline of a medical malpractice lawsuit and how medical malpractice settlements work.
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.
Learn more about damage caps in medical malpractice cases.
It's important to understand how damages work and how your medical malpractice claim might be valued. But this is just one piece of a very complex puzzle. Medical malpractice cases are notoriously difficult to navigate from both a legal and procedural perspective, and they can be even tougher to win. All of this is why it's crucial to have an experienced medical malpractice lawyer on your side, to make sure you put your best case forward.
Learn more about finding, hiring, and working with a medical malpractice lawyer. You can also use the tools on this page to connect with an experienced lawyer in your area.