Assessing Damages in Medical Malpractice Cases

If you are involved in a meritorious medical malpractice claim then at some point in the procedure, your attorney will have to determine, in dollars and cents, exactly how much he believes you should be compensated for being the victim of malpractice. This determination is based on the sum of the financial and non-financial loss you suffered from the Physician's mistake.

The calculation of economic loss related to the medical negligence is straightforward, and is not subject to any caps or limitations, whatsoever. The amount of the claim includes lost wages, (called lost earning capacity), past and future medical bills, costs of medicines and life care expenses. Medical bill expenses include payouts that were made for unnecessary medical treatment and payouts for medical treatment that was or will be needed to correct damage caused by the malpractice. Life care expenses include money that was or will be paid out for home care or domiciliary care that is required because of incapacity that resulted from physician negligence.
Lost earning capacity not only includes how much money you were unable to earn due to incapacity, at the time of the mistake, but also how much money you will be unable to earn in the future, due to damages from the malpractice.

Assigning a monetary figure to non-economic loss is more subjective and is subject to payout restrictions, (caps), in most jurisdictions. This component of the settlement claim is the only reimbursement a court or jury can make for the injury itself. The determination is based on the amount of pain, suffering and inconvenience the victim has or will experience. The damages can be classified as coming from either physical or psychological causes. In either case, the payout is not for the financial loss incurred, but instead for the pain, embarrassment, suffering, humiliation and inconvenience that resulted from the condition of the victim.

Physical injuries that cause non-economic damage include loss of vision, loss of a limb or organ, loss of sexual organs, sterility and disfigurement. Some of the psychological injuries that result in non-economic damages are loss of a loved one, severe pain, emotional distress, loss of consortium, (inability to engage in relations with one's wife), inability to do things you once enjoyed, (reading, playing tennis, playing with your child) and missed experiences, including educational, social and family.

Determining an exact monetary equivalent of your pain and suffering is very subjective. You must ask yourself what you believe your suffering is worth. Once you have come up with a personal figure, know that your sum will be evaluated, in line with contemporary legal thought.

Punitive damages might be awarded if the courts believe the malpractice was deliberate, wanton or reckless. The amount of the punitive damages depends on the egregiousness of the action, the amount needed to deter such actions in the future and the level of civil penalties for the same misdeed.

The final claim will be the sum of the economic, non-economic and punitive damages. According to Gary Wais, a Baltimore medical malpractice attorney with Wais Law, a Baltimore malpractice law firm, it is harder to win big settlements today because of the caps on non-economic damages.

Juries might tend to react more subjectively. A jurist might consider how mush compensation he would want if he were in the other person's shoes. Other tests, such as how much would a person pay to avoid the pain and suffering incurred from the injury, have been proposed, but almost universally rejected. Courts, as opposed to jurists, frequently consider other factors such as the age of the victim, i.e. how many years the pain and suffering will continue and also, the size of the award in similar cases.

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Gary Wais is a medical malpractice attorney, working for Wais Law, a medical malpractice law firm specializing in medical malpractice

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