Damages in Medical Malpractice Cases
Damages are a critical element of a medical malpractice case, and the plaintiff cannot recover damages for injuries that did not result from the doctor's conduct. Therefore, the plaintiff must establish a causal connection or link between the plaintiff's injury and the doctor's negligence. Generally, there are two types of damages available to a plaintiff in a medical malpractice case: compensatory damages and punitive damages. An experienced medical malpractice attorney can evaluate your situation, determine whether you have a claim, and put together a case for damages.
Compensatory damages are intended to compensate the plaintiff for the actual injury and harm that he or she has suffered. In other words, compensatory damages aim to make the plaintiff "whole." Compensatory damages can be divided into two categories, damages for economic loss (actual damages) and non-economic loss (general damages). Economic loss includes out-of-pocket expenses, such as medical and hospital bills, the cost of prescription drugs, nursing assistance, physical therapy and medical equipment such as a wheelchair. Lost wages because of missed work while you were recovering are also recoverable as compensatory damages.
Non-economic losses are harder to quantify in terms of monetary value and include pain and suffering, inconvenience, mental anguish, loss of consortium or companionship, loss of the ability to work, physical impairment or disability and disfigurement. It may also be possible for the plaintiff to recover damages for future lost wages and future medical treatment or therapy. A plaintiff may also be able to recover damages for the loss of the chance to obtain a better outcome in the surgery or medical procedure because of the defendant's negligence in treating the plaintiff.
If the plaintiff cannot establish actual damages, he or she may still be entitled to nominal damages. Nominal damages are typically very small amounts awarded in cases where the plaintiff has not sustained any actual loss or harm as recognition that a legal injury was sustained.
If the evidence shows that the doctor, nurse or other health care provider acted willfully, wantonly, maliciously, fraudulently, with bad faith or with a conscious indifference to the potential consequences, the plaintiff may be entitled to punitive damages. Punitive damages, also known as exemplary damages, serve to punish the health care provider for his or her wrongdoing in an effort to prevent similar future misconduct. Negligence alone is not sufficient to impose punitive damages. Some states allow exemplary damages, which are designed not to punish, but rather to compensate the plaintiff where the injury is seen as more severe because of aggravating circumstances.
There are a number of situations in which it may be possible for a plaintiff to recover punitive damages from an individual health care provider. Courts have awarded punitive damages in the following situations:
- Failure of surgeon to obtain the patient's informed consent to the surgery
- Failure to properly perform surgery or provide proper follow-up care after surgery
- Failure to perform sufficient tests to ascertain the health of a child
- Misrepresentation or fraud regarding surgery
- Altering medical records
- Failure to properly administer drugs or anesthesia
Courts have considered a variety of factors, which have been found to support a punitive damages award. Such factors include performing non-emergency surgery after a long day, performing a particular procedure at a significantly higher than normal rate, performing a procedure when a more appropriate procedure, which could not be done by the defendant, is indicated, overcharging for services and continuing to use a particular treatment when it has had bad results in the past.
A plaintiff may also be able to recover punitive damages from an institutional health care provider such as a hospital or clinic depending on the circumstances. Courts have allowed punitive damages where a hospital or clinic is liable for the conduct of one of its employees; a hospital or other employer ratified or approved of the employee's conduct, which conduct warranted an award of punitive damages; a health care institution failed to ensure the competency of its employees or supervise personnel; a hospital failed to provide adequate facilities, equipment or supplies; and an institution refused to disclose medical records.
Depending on your situation, you may be able to recover punitive damages as well as compensatory damages in your medical malpractice case. An experienced medical malpractice attorney can evaluate your situation and put together a case for damages.