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Anyone who suffers injury from medical malpractice may be able to hold the care providers responsible for lapses and negligence and file a personal injury lawsuit to claim for compensation for damages. Special rules applicable to the medical profession allow the victims of medical malpractice to sue any medical care professionals including doctors, nurses as well as hospitals and seek compensation for their ordeal. Medical malpractices are a form of professional negligence and a lawsuit related to it tries to find an answer within the legal system to the question about the losses incurred by the injured patient. The answer offered in monetary terms considers both general and special damages that cover physical, mental and other types of damages that the patient or plaintiff has undergone.
Claiming compensation for damages caused by medical negligence or medical malpractices follows a legal process which can be quite lengthy at times. You must appoint a personal injury lawyer to present your case. When looking for a reliable personal injury lawyer, you can Ask 4 SAM lawyers to help you out.
Calculating the damages comprises of assigning a monetary value to every element of pain, suffering, and agony of the affected person. It includes both objectives as well as subjective items. The objective elements are those that you can calculate directly and assign an exact value and known as Special Damages or economic damages. Other subjective elements that are difficult to calculate directly to ascertain exact value come under the category of General Damages or non-economic damages. Damages in medical malpractice cases are like damages available in civil injury cases but much larger in amount.
In this article, we will discuss the damages in medical malpractice cases and related compensation.
Special damages are monetary relief provided to the plaintiffs for the out of pocket expenses incurred by them because of medical negligence or similar act that caused harm to the plaintiff. It comprises of tangible items to which you can assign a value directly.
Loss of earnings or wages including future and past losses (if it is possible to calculate), medical bills and other financial damages resulting from the medical malpractice leading to injury and harm. Loss of earning or earning capacity refers to the amount of earnings including employment benefits from the past and extends to the future.
To calculate the future earnings that can stretch for many years, it is necessary to base the calculations on the present value. It involves a financial concept of working out the total future earnings, based on your weekly paycheck, by considering as if the amount is available in the bank today. In other words, it is the amount that your employer must put into the bank today to pay salaries to you for the next 15,20 or 25 years. The calculation is quite complex, and lawyers avail the services of economists to work out the exact figure.
Difficulties in calculating lost earnings
The calculation of lost earnings or loss in earning capacity depends on the current earning status of the plaintiff. It can be that you are not earning anything presently or unemployed or you had planned for taking up a new job at a higher salary that you could not due to the injury. It can happen that you might be self-employed.
For unemployed persons, the lawyer would consider the earnings from the previous job as the capacity to earn at the time of injury. There are no lost earnings for retired persons. If the injury happens just before taking up the new job, the prospective salary becomes the earnings. For self- employed persons the lawyers will work out the earnings after checking your business records and tax returns to justify things.
Future medical bills also come under special damages. Medical economists engaged by lawyers handle the task of calculating future medical bills for persons whose injuries would require prolonged or even lifetime treatment.
Non-economic or intangible damages come under this category that includes the pain and suffering and mental agony that the person undergoes as a result of the injury. In the absence of any guidelines for determining the value of pain and suffering of an injured person, it is not easy to justify the claim for compensation towards general damages.
To assign a value to the pain and suffering of the injured person the insurance companies use a ‘multiplier’ which is the norm when settling personal injury claims arising from medical malpractices. The ‘multiplier’ is a factor used for multiplying the value of special damages to arrive at a value for pain and suffering. However, the jury does not use ‘multiplier’ but instead consider several other factors to ascertain the value of the damages.
What the jury considers
Since many of the factors considered by jury are extraneous in nature and subjective, the outcome of the exercise in assigning a value to general damages can vary greatly. How much the jury likes the plaintiff becomes an important factor that influences the decision. Whether the plaintiff is a good or bad witness and whether he or she is lying are factors that the jury takes into consideration along with examining whether there is any criminal record of the plaintiff. In addition, the jury would also consider if the defendant’s witness has lied and whether the injuries are easy to understand by the jury.
Whether the plaintiff is available in the courtroom affects the decision of the jury because the trend is to award lower compensation for the deceased as compared to what living and suffering the plaintiff would receive.
Damages that amount to a loss of consortium
The injured person used to provide some intangible benefits to his or her children and spouse and this in legal parlance termed as loss of consortium. This broadly refers to the damage to the relationship between the injured person and the family members and even includes the effect that the injury has on sexual relationship.
Some states impose caps on the maximum amount of general or non-economic damages, and you must check with your lawyer about it.