Elements of a Medical Malpractice Claim – Damages


Medical malpractice cases are usually expensive.  Even a relatively simple case can cost tens of thousands of dollars (not including attorney’s fees).  It costs a lot to pay expert witnesses, take depositions, thoroughly prepare a case for trial, try the case, and litigate any appeal following a verdict.   More complex cases can cost hundreds of thousands dollars.  Unfortunately, this means most viable medical negligence cases require significant damages.  Significant damages generally means a permanent, debilitating injury or death.  Significant damages are required because the magnitude of an injury is generally proportional to the amount that can be recovered.  The amount of a recovery in a case with only minor or moderate damages is likely to be quickly eroded by the cost of litigation, leaving little or nothing, for the victim.

When negligence results in an injury, the injured person has a claim for harm suffered as a result of the negligence.  The injured person’s spouse also has a claim for their loss of consortium resulting from the harm.  Less frequently, a parent may have a claim for the loss of consortium of an injured child, and, likewise, a child for the loss of consortium of an injured parent.  Parent-child loss of consortium claims generally arise only when the injury severely affects the nature of the relationship between the parent and child.

When negligence results in death, only the spouse, parent, or child of the decedent can make a claim.  The amount of any recovery for the death of a loved one depends largely on the number and age of the claimants, the age and health of the decedent, and the nature of their relationships.  A jury will view the magnitude of a young child’s loss of a parent much differently that it will an older child’s loss of an elderly parent.

Damages are either compensatory or exemplary.  There are two types of compensatory damages – special and general.

Special damages are damages that can be easily quantified.  They include things such as funeral expenses, lost wages, and loss of financial support, the cost of past and future medical care, and the cost of special provisions necessary to conduct activities of daily living, such as modifications to a house or car.

General damages are damages that cannot be easily quantified.  Most people know them as pain and suffering damages.  They are basically the same in an injury case as they are in a death case.  They include: (1) pain, discomfort, suffering, disability, disfigurement and anxiety experienced both in the past and the future; (2) the loss of love, care, affection, companionship of a relationship; and (3) the loss of enjoyment of life including the ability to participate in life’s activities and the quality and extent of that participation enjoyed before the injury.  A jury is instructed to consider all of these factors in light of the nature, extent and duration of an injury or effect of a death.

Expert witness testimony is often used to establish the amount of damages.  Some of the more commonly used experts include a life care planner who can access the cost of medical treatment and other care required by the injured person; an economist to testify about how the cost of such care may change over time; a vocational rehabilitation specialist who can discuss what type of work a person may or may not be able to do and quantify any wage loss resulting from an injury; and, a psychiatrist or psychologist who can talk about how grief affects those who have lost a loved one.

Exemplary damages are punitive damages.  Punitive damages are awarded to punish egregious conduct and make an example of what not to do.  Such conduct must be established by clear and convincing evidence.  Punitive damages are rarely awarded in any case, and even less frequently in medical negligence cases.  Even where punitive damages are found to be appropriate, the amount of punitive damages is generally limited by law to the combined amount of special and general damages.

Damages are often overlooked by lawyers as an afterthought or something that should be obvious to the jury.  This is absolutely the wrong approach.  Damages are by far the most important issue in a medical negligence case, or any personal injury case for that matter.  Significant effort must be spent developing this issue.  Presenting damages can also be one of the most difficult things to do.  It must be done in a way that appeals to a jury and is not offensive.  A lawyer must appreciate that every juror will have unique life experiences and perspectives, but he or she must also understand how to best use the range of juror experience and perspective to help the jury understand the real impact an injury or deatht has on a particular set of victims.  We have that skill set and have used it effectively over and over again.

Here is a detailed explanation of the other two basic elements of a medical malpractice claim:

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