What Damages are Available for Medical Malpractice?

There are various types of medical malpractice cases ranging from surgery on the wrong body part, to misdiagnosis of a disease. If a case of medical malpractice is proven to have caused harm to the patient, the patient is entitled to be compensated the amount of money damages that fairly and adequately compensates the them for all the physical injuries and financial damages he or she has sustained. The possible damages recoverable in a medical malpractice claim are:

1. Past Medical Expenses

An injured patient is entitled to be compensated in the amount of all past medical expenses reasonably incurred for the diagnosis, treatment, and cure of his or her injuries from the date of the mistake to the present.

2. Future Medical Expenses

An injured patient is also entitled to be compensated for all medical and other related expenses including expenses for the purchase and replacement of medically necessary equipment she will reasonably incur in the future for the treatment and care of her continuing injuries. Future medical expenses are typically determined through a combination of the patient’s treating doctors and a life care planner. A life care planner is a doctor or nurse who identifies what medical care or accommodations the patient will need in the future and then projects out the total cost for that care for the patient’s life expectancy.

3. Past Lost Earnings

Oftentimes, the injured patient’s ability to work and earn money will be affected by their injury. In such a situation, the law permits the patient to be compensated for the amount of all earnings that he or she has lost from the time of the medical mistake up to the present as a result of his or her injuries. If the patient has been able to continue to work but at a lesser level than before the malpractice injury, the patient may recover the difference between what he or she could have earned but for the harm, minus any sum he or she actually earned from any employment. Because these figures are, generally speaking, straightforward, they can often be established by the injured person’s testimony and wage records. Typically, an expert is not needed to calculate the amount of past economic damages.

4. Future Loss of Earnings and Lost Earning Capacity

Similarly, the patient is also entitled to receive a sum of money that fairly and adequately compensates the plaintiff for all future loss of earnings and earning capacity. To establish a claim for this type of damages, the patient must prove through testimony, earnings records, and, often times expert analysis, the total amount of money they would have earned for the remainder of their work life or period into the future they are deemed disabled but for the medical mistake that caused harm.

When evaluating a patient’s future lost earnings due to medical malpractice, there are a number of additional factors which must be considered, including, the patient’s age, education, and work experience; the patient’s physical condition before and after the injury; the work that the patient has done in the past or was capable of doing; the work that the patient would have been doing in the future had the injury not occurred; the extent and duration of the patient ’s injury; the work the patient will probably be able to do in the future with the injury; the effect increases in productivity have on the amount of the patient’s loss (for example when the patient’s condition is expected to improve such that they will perform more work in the future); the effect inflation will have on the amount of the loss;

Because of the complexity in evaluating a person’s future economic losses, expert testimony is almost always required to weigh in on the total future loss with reduction to present value based upon a reasonably secure fixed income investment factored in.

5. Past and Future Noneconomic Damages – The Human Losses

Past and future medical costs and earnings losses get the patient out of the “debt” their medical malpractice injury has caused them. To be made whole (or as close as financial compensation can) the patient is entitled to recover money for their noneconomic or “human losses” suffered from the malpractice.

There are four items that make up a damage award for noneconomic loss, both past and future: (1) pain and suffering, (2) embarrassment and humiliation, (3) loss of ability to enjoy the pleasures of life, and (4) disfigurement.

While expert testimony from a doctor or healthcare provider can be used to support a claim for noneconomic damages, it is important to note that a patient’s own testimony as to pain and suffering alone can support a jury award. In fact, medical experts are prohibited from testifying that the patient at issue definitively suffered pain. A medical expert can only testify to the nature and type of injury the patient suffered and whether it is reasonable that such an injury would cause pain or suffering.

Pain and Suffering

The first item to be considered in the patient’s claims for damage awards for past noneconomic loss and for future noneconomic loss is pain and suffering. The law in Pennsylvania states that patients who have been harmed by medical malpractice are entitled to be fairly and adequately compensated for all physical pain, mental anguish, discomfort, inconvenience, and distress that they have endured from the time of the injury until the present and that they will endure for the rest of their life as a result of the injuries.

It is important to note that this category of harm relates not just to physical pain (e.g. an injured spinal nerve causing excruciating pain in the patient’s leg) but also to mental pain (e.g. the anxiety, stress and depression associated with coming to grips with a permanent injury).

Embarrassment and Humiliation

The second item that goes to make up noneconomic loss is embarrassment and humiliation. Victims of medical malpractice are entitled to be fairly and adequately compensated the embarrassment and humiliation they have endured and will continue to endure for the rest of their life as a result of the injuries.

This category can be one of the most significant harms suffered by a patient. For example, patients left with paraplegia often have to depend on other people to help them bathe and go to the bathroom. How do you put a price on this loss of dignity and the personal degradation associated with it?

Loss of Enjoyment of Life’s Pleasures

The third item of noneconomic damages a patient may claim is loss of enjoyment of life. The patient is also entitled to be fairly and adequately compensated for the loss of his ability to enjoy any of the pleasures of life as a result of the injuries from the time of the injuries until today, and for the remainder of his life.

As was stated in our nation’s declaration of independence, there are three key “inalienable rights” we as American’s hold in the highest regard – life, liberty and the pursuit of happiness. It is that last category, “the pursuit of happiness” that relates to a patient’s right to seek financial compensation for the loss of the ability to enjoy the things in life that make them happy. For example, do we not all cherish a good night’s sleep? If an injury, caused by medical malpractice, prevents a patient from ever sleeping they way they used to then they are entitled to be compensated for the loss of their ability to enjoy this pleasure that most of us take for granted. For example, many of us take for granted our ability to walk without a limp and without pain. If a patient’s ability to walk has been compromised due to malpractice, the law says they can claim financial compensation for that loss.

Disfigurement

The fourth and final item is disfigurement. In addition to any damages claimed for pain and suffering, embarrassment and humiliation, and for loss of enjoyment of life, the patient is entitled to be fairly and adequately compensated for any disfigurement she has suffered from the time of the injury to the present and that she will continue to suffer during the future duration of her life.

An important point here is that disfigurement is not limited to just visible scars but also to any limps, speech defects or hearing deficiencies, the patient has suffered from medical practice.

You Cannot Ask a Jury for a Specific Amount of Noneconomic Damages

In Pennsylvania, lawyers fighting for patients in court are forbidden from asking the jury to award a specific amount of money for the patient’s noneconomic damages. They can ask for the specific amount of medical bills and lost earnings but lawyers cannot state a number to the jury for what is fair compensation for the patient’s human losses. This makes the job of the jury in appraising this loss much more difficult because they are not given any guidelines.

All articles in this blog are the collaborative effort of attorneys Jerry Meyers, Brendan Lupetin, and Gregory Unatin.

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