MEDICAL MALPRACTICE AND PERSONAL INJURY LAW BLOG

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The Types of Damages in a Medical Malpractice Lawsuit

After a medical injury, the damage done may include scars, unnecessary surgery, and time away from your job and family. How is an injury victim supposed to be compensated for a medical error? In a medical malpractice lawsuit, the injury victim can recover compensation through a claim for damages. Damages can include out-of-pocket losses and other losses that were caused by the medical error. If you have questions about damages in a medical malpractice claim and want to know your options, talk to an experienced medical malpractice team for advice. 

What Are Damages? 

Damages in a medical malpractice lawsuit refer to the losses suffered by the injured party. In a lawsuit, damages are intended to compensate the injury victim for their losses. This can include their financial losses and non-financial losses. Even though no amount of money may be enough to repair the damage done, financial damages are the best way to compensate an injury victim after a medical error. 

Types of Damages in a Medical Malpractice Case?  

In most medical malpractice cases, the damages available are compensatory damages. The types of damages an injury victim in a medical malpractice case may claim include: 

  • Economic damages
  • Non-economic damages
  • Punitive damages
  • Attorney’s fees

Not all malpractice claims will include all of these damages. Your medical malpractice attorney may be able to make a claim for all possible damages, and the judge and jury may determine the amount of the award. 

Economic Damages After a Medical Injury

Economic damages are quantifiable damages that were caused by a medical injury. Economic damages are sometimes referred to as “special damages.” Economic damages include:

  • Medical expenses
  • Future medical care costs
  • Loss of income
  • Loss of earning capacity

Medical Expenses

After a medical injury, the injured patient is entitled to receive compensation for the costs of medical care caused by the injury. Medical expenses include hospital bills, ambulance fees, in-home care, medication, and medical devices. 

Medical expenses can also include future care the patient may need as a result of the injury. For example, if a birth injury was caused by improper delivery techniques, the family may need to pay for medical expenses for the rest of the child’s life. A medical expert can estimate the range of costs of future medical care that the negligent doctors should be required to pay.

Lost Wages

If you are injured in a medical accident, you may not be able to work for days, weeks, or even suffer a permanent disability. When the injury prevents the patient from working, the patient can include lost wages in the damages claim. Lost wages can include loss of income from not working and continuing loss of income. 

Loss of earning potential can include the loss of economic opportunities caused by the injury, based on the range of wages and benefits the injury victim would likely have received if they had not been permanently injured because of the doctor’s injuries. 

Non-Economic Damages in a Malpractice Claim

In health care malpractice lawsuits, some injuries do not result in clear, economic loss. For example, if a doctor wrongfully amputated your leg, how much is the loss of your leg worth? No amount of money can bring back your leg, so how do you estimate the damages that are not clearly economic?

Losing your leg could cause pain, difficulty getting around, and make it harder to care for your children. If you were a recreational runner, you may no longer be able to enjoy the same activities. A serious medical injury can also impact your intimacy with your partner. 

Noneconomic damages include payment for pain, suffering, physical impairment, disfigurement, loss of consortium, or other nonpecuniary injuries. Loss of consortium is the term for loss of benefits of a family relationship, which could include a relationship between spouses, children and parents, and others. 

Chronic injuries can result in a lifetime of pain and suffering. These types of injuries can also prevent someone from participating in regular activities of daily life. The amount of noneconomic damages for an injury can depend on several factors, including the extent of the disability or injury and estimated lifespan of the injury victim. 

Punitive Damages or Exemplary Damages

Punitive damages are not based on your losses but are instead intended to penalize the wrongdoer. Punitive damages are intended to punish wrongful behavior. Exemplary damages can punish the defendant but also deter others from causing similar harm. From a public policy standpoint, punitive damages send a message to others that they can pay a heavy price when they negligently cause injuries to an innocent victim. 

Most medical malpractice cases do not result in punitive damages. Punitive damages generally do not apply in cases of negligence. Instead, a judge may only award punitive damages where the defendant’s wrongful behavior was the result of intentional actions, malice, or willful and wanton injury. 

For example, when a doctor made a mistake that caused an injury, they may not pay punitive damages for their mistake. However, if the doctor made a mistake and intentionally tried to cover up the mistake by falsifying medical records, that may be considered intentional action that warrants punitive damages. Ask your malpractice lawyer about whether your case may qualify for punitive damages. 

Attorney’s Fees and Legal Costs

It can take a lot of resources to take a medical malpractice case to trial. When you are looking for a medical malpractice lawyer, it is important to find a legal team with the resources to see your case through till the end. Medical malpractice cases can take a long time and take up a lot of resources, including multiple medical expert reports, financial expert reports, medical examinations, and dozens of depositions from doctors, nurses, and other health care workers. 

At the end of a case, you may request the opposing side be responsible for the legal expenses of your case. Afterall, it was the doctor or hospital that caused the injury and refused to pay for your damages. It would seem they should bear the burden of the legal expenses to force them to pay for the damage done. In these cases, you may be able to recover the legal fees and court costs from the defendants. 

Limits to Medical Injury Damages

It may seem bizarre that the courts can limit the amount of damages available just because it is over a certain number. The jury may decide an injury victim in a birth injury case should be awarded $2 million in economic damages and $3 million in noneconomic damages. However, in states with caps on damages, a judge could reduce the award of noneconomic damages to the cap. A jury is also not to be informed of the limitation, which means a jury may think they are doing the right thing only to have the courts change the amount after-the-fact.

Some states have a cap on medical malpractice damages. A cap means that the injury victim cannot receive over a certain amount of compensation after a medical error. Generally, caps are limited to non-economic damages. Non-economic damages caps can be based on a percentage of the economic damages or a set dollar amount. Unfortunately, a majority of states have a cap on damages. 

Other states do not have a cap on damages because they recognize that the damage done to an injury victim and their family does not have a set dollar amount. Some states have even found caps on damages to be unconstitutional. States with no cap on noneconomic damages in a medical malpractice claim include: 

  • Illinois
  • Pennsylvania
  • District of Columbia

Unfortunately, the medical industry is a powerful lobby and some states have adopted caps as a way to protect hospitals and powerful healthcare business interests. State that have a cap on noneconomic malpractice damages include: 

  • Maryland
  • Virginia
  • West Virginia

Maryland Cap on Medical Malpractice Noneconomic Damages

Maryland has a cap on non-economic damages in medical malpractice cases. Under Courts and Judicial Proceedings § 3-2A-09, “an award or verdict under this subtitle for noneconomic damages for a cause of action arising between January 1, 2005, and December 31, 2008, inclusive, may not exceed $650,000.” 

The cap is adjusted annually for inflation, increasing $15,000 each year. Unless the Maryland legislature changes the law, the maximum value of noneconomic damages for the following years are as follows:

  • January 1, 2020-December 31, 2020: $830,000
  • January 1, 2021-December 31, 2021: $845,000
  • January 1, 2022-December 31, 2022: $860,000
  • January 1, 2023-December 31, 2023: $875,000
  • January 1, 2024-December 31, 2024: $890,000
  • January 1, 2025-December 31, 2025: $915,000

Maryland Cap in Wrongful Death Claims

Maryland also has a cap on damages in a wrongful death claim where there are two or more claimants or beneficiaries. Under  Courts and Judicial Proceedings § 3-2A-09(b)(ii), “if there is a wrongful death action in which there are 2 or more claimants or beneficiaries, the total amount awarded for noneconomic damages in all actions may not exceed 125% of the limitation, no matter how many claimants, plaintiffs, beneficiaries, or defendants. 

This means that cap is 125% of the medical malpractice cap as detailed in the section above. For a cause of action arising between January 1, 2005, and December 31, 2008, inclusive, the cap would be 125% of $650,000, or $812,500. The maximum value of noneconomic damages in a wrongful death claim for the following years would be as follows:

  • January 1, 2020-December 31, 2020: $1,037,500
  • January 1, 2021-December 31, 2021: $1,056,250
  • January 1, 2022-December 31, 2022: $1,075,000
  • January 1, 2023-December 31, 2023: $1,093,750
  • January 1, 2024-December 31, 2024: $1,112,500
  • January 1, 2025-December 31, 2025: $1,143,750

Can You Get Damages in a Settlement Offer?

In most medical malpractice cases, the issue of damages never goes to a jury. This is because the vast majority of med mal cases end in settlement instead of a trial. More than 90% of medical malpractice cases are settled before they go to a jury. How do damages work in a settlement? 

A settlement is an agreement between the injury victim and doctors to drop the legal claims in exchange for an award. The settlement amount is based on the requested damages but may not directly reflect the amount of economic and non-economic damages. For example, an injury victim may claim $1 million in economic damages and another $1 million in non-economic damages. The case may eventually settle for $1.8 million total, without addressing the proportion of how much goes towards economic losses. 

Why would the injury victim or the doctor settle the case instead of going to trial? An injury victim may want to recover everything requested in a malpractice claim. However, a settlement can be in their best interests, even if they recover less than requested. One reason is that a jury can be unpredictable. Even if the injury victim thinks they have a strong case, a jury could disagree. A settlement is a guaranteed result and does not leave anything up to the judge or jury. 

Another reason a settlement can be in your best interests is that a jury trial can be difficult, expensive, and time-consuming. Trials can last weeks or even months. This can be costly and be very stressful. The injury victim may have to relive their traumatic experience and go through the process of hearing someone claim the injuries were not caused by negligence or that the suffering was not as bad as the victim claimed. A settlement can avoid the time, cost, and difficulty of a trial. 

What Damages Can I Get in a Medical Malpractice Case?

Each case is different and the amount of damages you can recover will depend on several factors. With the right legal team on your side, you can feel confident that you will recover the maximum compensation available. An experienced medical malpractice lawyer can review your case, get a medical expert’s review, and help you understand your legal damages available in a claim against the doctors, hospitals, and caregivers. 

Contact experienced trial attorneys who have successfully represented medical error victims and their families to recover financial compensation. Contact Gilman & Bedigian online or at 800-529-6162 for a free consultation.

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