Posted by Bill Sandweg on 20 September 2021.
Over the past two weeks, I have written about the first two required elements of a medical malpractice case: Standard of Care and Causation. There is a final requirement. It is that the breach of the standard of care must cause damages. Damages is another area in which the Arizona legislature, prohibited by the Arizona Constitution from capping damages, has used workarounds to limit what negligent healthcare providers must pay.
Damages come in two basic flavors. The first is special damages. These are amounts which can be the subject of actual computation. Some obvious examples in medical malpractice cases are medical bills, lost income, and loss of earning capacity.
The second type of damages we encounter in medical malpractice cases is general damages. These are the damages that are not subject to computation. Pain, emotional suffering, and disability are the most obvious examples of general damages.
The purpose of both of these types of damages is to compensate the patient for the harm that has been done. This is why these damages are called compensatory damages. They try to put the patient in the position she or he would have been in had there been no medical malpractice. Of course, money is an imperfect way to put the patient back where they would have been but for the malpractice, but money is the only tool the law has.
There is a third type of damages, which is only rarely seen in medical malpractice cases. It is punitive damages. These are damages intended to punish a defendant or to make an example of a defendant. They are reserved for situations in which the defendant’s conduct was intentional or, even if not intentional, so reckless and likely to cause serious harm that it is worthy of punishment. Punitive damages are an evolving area of the law. The United States Supreme Court has been placing limits on the size of these awards and requiring that they bear a close percentage relationship to the compensatory damages.
Many states have responded to claims that there is a malpractice crisis by limiting the amounts juries can award to patients injured by medical malpractice. These limitations are almost always on the amount juries can award for non-economic damages, such as pain and suffering. Once they are in place, it is almost impossible to get them changed. In 1975, California placed a $250,000 limit on non-economic damages arising out of medical malpractice. That was 45 years ago. In spite of the erosion of the purchasing power of the dollar over the last 45 years, that limit has never changed. The medical industry got its victory and holds on to it like a junkyard dog holds on to a bone.
The Arizona Constitution does not permit the legislature to limit damages in any way so our good friends out there who want to do a favor for the medical industry have had to resort to other means of making it hard on injured patients. One way they have seized upon is to permit juries to be told that the injured patient has had some or all of her medical bills paid by insurance or that she has disability insurance or even life insurance in a death case. This cannot happen in any other type of personal injury case. It has had the anticipated effect of causing the jury to think that the victim has not really been harmed that much. This in turn has resulted in more wins at trial for doctors and hospitals and, in those cases where the jury does find for the patient, to reduce the amount of the award.
As you can see from this discussion, damages are an important part of a medical malpractice case. If the damages are not very great or if the jury believes that the patient has recovered from the injury, the jury will be much more comfortable in finding in favor of the doctor or hospital. It is when the jury believes that the patient needs its help in order to go forward in life, that there is the greatest likelihood of a verdict in favor of the patient. Sadly, this means that those patients who were injured, but not very badly, or who went through hell but are better now, are usually turned away by the jury. Only those patients who suffered a catastrophic injury have a reasonable chance at winning their case at trial. There has to be a better way.