Did you know that medical liabilities or damages costs are estimated at $55.6 billion every year? This figure represents about 2.4% of the total healthcare spending by the US government as captured by a recent Harvard University study.
Victims of medical malpractice usually file lawsuits and get compensated if it’s proven that the suffered injuries or losses are as a result of a doctor’s negligence. Legally, any patient who suffers from a medical professional’s carelessness is entitled to reasonable and fair compensation, which acts as an indemnification for the physical, emotional, or financial suffering they experienced.
Besides indemnifying the patient, the courts can also impose punitive damages, intended to punish the medical practitioner for deviating from the standard practice norms, including failure to act in accordance with the standards of a reasonably competent medical professional.
That said, here are some factors that are considered when calculating medical malpractice damages:
- Physical pain and suffering
- Mental distress and suffering
- Permanent impairment or loss of bodily functions
- Disfigurement
- Loss of the ability to enjoy life’s pleasures
- Loss of consortium
- Death
- Lost wages
- Loss of benefits, such as pension contributions
- Medical care expenses
- Custodial care
- Lost future earnings
- Lost earning capacity
- Funeral expenses if the injury resulted in death
What are the types of malpractice damages?
There are two main types of damages in medical malpractice:
- Economic damages
- Non-economic damages
For economic losses, you must prove that the expenses you incurred or the future earnings you lost were caused by the doctor’s negligent acts or omissions. For non-economic damages, the nature and duration of any pain and suffering are considered.
Economic damages, commonly referred to as special damages, are objective, measurable, and actual monetary losses that cover the direct financial impact of your injuries. They include the actual medical costs and lost earnings. Non-economic damages are subjective and difficult to quantify because they are losses that don’t have a price tag and cannot be verified using measures like documented bills and receipts. They include loss of enjoyment, diminished quality of life, and mental anguish.
Let’s dig deeper.
The three categories of damages that come under these two types of medical malpractices are:
General damages
This is money awarded in a lawsuit for injuries suffered (such as pain, suffering, inability to perform certain functions) or loss of enjoyment in life. No exact dollar value can be calculated.
If it is apparent that you suffered permanent physical harm, loss of function, or disfigurement, you are entitled to general damages. The same applies to mental suffering. The award should align with the nature, extent, and length of time you are reasonably expected to go through any unfortunate experiences. It is important to note that you may not be compensated for a pre-existing injury.
Special damages
Special and economic damages are generally quantifiable, unlike general damages. These damages are geared towards recovering expenses associated with medical care, costs incurred for the treatment of injuries that resulted from a negligent act or omission, and loss of earnings up to the present time. If you are permanently impaired and have lost all earning capacity, the attorney will calculate the total amount you would have earned in your life.
Punitive damages
In addition to general and special damages, the civil court might deem it fit to award punitive damages. This award is not only to compensate the victim for the suffering but also to punish the doctor or other medical professional for their negligent misconduct. For example, according to the incident mentioned in the article the Atlantic when a doctor purposely misdiagnosed patients a doctor intentionally misread the patients’ EEGs and misdiagnosed them with epilepsy in childhood, all to increase his pay. This may result in a judgement that includes punitive damages, for deliberately misdiagnosing or performing unnecessary procedures for personal gains.
The amount of punitive damages that can be awarded is at the discretion of the jury but is subject to the judge’s approval. It is only given under special circumstances and many judges will not permit an amount that is ten times more than the amount awarded to the plaintiff as special and general damages.
Damages for Death in Medical Malpractice
When your loved one dies because of medical negligence, you can file a lawsuit against the doctor or the hospital that is responsible for the death. The two types of damage claims that can be made under wrongful death are:
Wrongful death damage
Wrongful death damages can be based on the loss of the deceased’s future monetary compensation and the trauma associated with the loss of a loved one. These calculations can be done by projecting factors like the victim’s future earnings, savings, expenses, and working habits. Each state has different laws for calculating the non-economic damages based on wrongful death cases.
Survival damage
Survival damages are the damages associated with the period after the negligence occurred up to the point the victim dies. These damages include medical care expenses, lost income, and pain and suffering. The damages are awarded to the patient’s heir and are generally the amount of money that would have been awarded to the patient if they were alive.
What are caps on different types of damages?
Nearly 30 states have laws that limit damages in medical malpractice lawsuits. The laws vary widely in terms of the maximum amount of damages and have limitations on the amount that can be given as compensation for both economic and non-economic damages.
However, some states will only put a cap on non-economic damages like mental distress and suffering, loss of life enjoyment, disfigurement or scarring.
How are legal malpractice damages calculated?
General Damages
The general damages include both physical and emotional suffering. Physical pain and suffering can be caused by injuries, scarring, or disfigurement. These are calculated by considering the emotional and physical pain and suffering, including mental distress, anguish, anger, agitation, social isolation, sleep disorders, sexual dysfunction, and damage to relationships.
Special Damages
Special damages are comparatively easy because they have a price tag. They are calculated to the exact dollar using medical bills, earning capacity, and other financial losses. This includes the losses from the past, present, and future due to the negligent act or omission. It can be difficult to estimate the damages for future lost earnings and earning capacity. Therefore, it is generally calculated by factoring in present value and life expectancy.
When calculating the present value, the court will consider the current value of a future sum of money. On the other hand, life expectancy is evaluated based on the statistical measure provided by the federal government. The number of years the person is expected to live is based on the person’s characteristics like age, sex, race, BMI, diet, medical history, and other behavioural habits.
Calculating financial damages for medical malpractice cases is often complex and usually requires a medical economist that your lawyer will hire as an expert witness for your case.
