It is critical for injured patients who are considering bringing a medical malpractice case to understand the potentially recoverable damages. Without serious damages, it may not be possible to bring the case for economic reasons – even if there was clear wrongdoing.
In everyday life, a damage is thought of as an individual insult or injury; maybe a destroyed piece of property or a broken limb. In civil law, it refers to the sum of money awarded for a specific harm caused by the defendant.
Damages in medical malpractice law refers to the compensation awarded to the plaintiff as a result of the harm caused by the negligent actions of a doctor, dentist or surgeon.
In this article, we will provide a quick review of the damages potentially recoverable in malpractice lawsuits, focusing on Virginia’s laws about medical malpractice cases.
Types of Compensatory Damages
Virginia’s Model Jury Instructions list the specific types of damages an injured patient can recover:
Instruction No. 9.000 General Personal Injury and Property Damage
[If you find your verdict for the plaintiff, then, in] [In] determining the damages to which he is entitled, you shall consider any of the following which you believe by the greater weight of the evidence was caused by the negligence of the defendant:
(1) any bodily injuries he sustained and their effect on his health according to their degree and probable duration;
(2) any physical pain [and mental anguish] he suffered in the past [and any that he may be reasonably expected to suffer in the future];
(3) any disfigurement or deformity and any associated humiliation or embarrassment;
(4) any inconvenience caused in the past [and any that probably will be caused in the future];
(5) any medical expenses incurred in the past [and any that may be reasonably expected to occur in the future];
(6) any earnings he lost because he was unable to work at his calling;
(7) any loss of earnings and lessening of earning capacity, or either, that he may reasonably be expected to sustain in the future;
(8) any property damage he sustained.
Your verdict shall be for such sum as will fully and fairly compensate the plaintiff for the damages sustained as a result of the defendant’s negligence.
Often, when lawyers and courts talk about these damages, they break them down into economic and non-economic damages. This is not because one type is more important than the other type, but can be a legal shorthand to differentiate between the types of damages that include hard numbers from the ones that the jury has to decide.
Economic damages can be the easier part of the case to evaluate. These include actual financial losses from medical expenses, lost wages, rehabilitation costs, and other financial impacts caused by the malpractice. They already come with a dollar amount associated with them. Evidence in the form of receipts, invoices, bills, wage statements, or other documents which prove the financial losses to the plaintiff will typically be used to back up these claims.
Non-economic damages, on the other hand, encompass the intangible losses of a malpractice claim. They can be the most important part of the case. They may be what matters most to the injured patient. These are items such as bodily injuries, disfigurement, pain, suffering, emotional distress. It is up to the malpractice law team to show the extent of the damage and its impact on the life of the plaintiff through evidence other than receipts.
Pursuant to Wakole v. Barber, 283 Va. 288 (2012), the plaintiff’s attorney may request a specific amount for each element of damages sought, as long as there is evidence in the record in this case to support each element of damages claimed and the total amount requested is no more than the amount sued for in the lawsuit’s Complaint.
General Damages and Special Damages
The term “General Damages” refers to non-economic damages described above. In some places, the term “Special Damages” is used to refer to economic damages.
The determination of a dollar amount for the damages in malpractice lawsuits involves several factors. These can be difficult things to think about, let alone figure out dollar value.
This is why having a strong malpractice team is so important to your overall recovery in a malpractice case. Your team are our attorneys and paralegals, expert witnesses, along with our skilled support staff at Wallace Wason, PLLC.
Expert Medical Witnesses
The role of expert medical witnesses is fundamental in malpractice cases. Experts can provide testimony regarding the long-term effects of the malpractice and its impact on the patient’s life, supporting the calculation of damages.
With your team, we’ll help to determine appropriate demands based on the following criteria:
Severity of the Injury
The extent of the harm suffered by the patient plays a significant role in deciding the dollar award. How badly was the patient’s body injured? Severe injuries with long-lasting consequences may result in higher damages.
Past Medical Expenses
The patient’s medical expenses incurred treating or attempting to treat the injuries are recoverable as damages in a medical negligence action. Because most malpractice cases involve very serious injuries, these bills can amount to hundreds of thousands or millions of dollars. Note, in most instances the patient can claim the full amount of the bills even if insurance paid a portion of them. See Acuar v. Letourneau, 260 Va. 180 (2000).
Future Medical Expenses
Many medical malpractice cases result in injuries that require a lifetime of care. Damages calculations consider expected future medical costs, including ongoing treatment, medications, and physical rehabilitation. Those calculations take into account the age of the individual at the time of injury as well as anticipated lifespan.
Loss of Income or Future Loss of Income
When medical malpractice results in the patient not being able to work at all or in only a limited way, the patient can recover for their past and future lost income. Depending on their rate of pay, this can be millions of dollars over a lifetime.
Disfigurement or Deformity
Medical malpractice can leave a patient deformed or disfigured. That can be embarrassing for the injured patient. Awarding damages for that category of damages is society’s only way to compensate for a category of damages that can have a profound impact upon a patient’s life.
Impact on Daily Life
Determining damages takes into account the impact of the injury or symptoms on the patient’s ability to perform daily activities (also known as ADLs or Activities of Daily Living), to undertake work, and engage in hobbies or sports. This may be addressed in other categories of damages, as well. But the inconvenience portion of the damages is intended to compensate for the injuries making the patient’s life harder.
The Importance of Legal Representation
Navigating malpractice lawsuits and pursuing fair compensation for damages can be complex. Most people in this situation need help with the following:
Evaluation of a malpractice case requires expert opinion, as well as experienced judgment to know how to effectively argue for, and present a damages model. We will assess the details of your case, gather proof, and determine the strength of your claims as well as help to determine an appropriate demand.
Building a Strong Case
Your legal team will work with you to compile the necessary records and documentation that will serve as the foundation for your case. Our job includes engaging expert witnesses and developing the winning legal strategy for your case.
Advocating for Fair Compensation
At Wallace Wason, PLLC, we will fight for your rights and negotiate with insurance companies or other parties. We strive for fair compensation that reflects the full array of damages you have suffered.
Understanding the recoverable damages in malpractice lawsuits is essential for those seeking justice and fair compensation in Virginia. Economic and non-economic damages play a significant role in determining the financial and intangible losses resulting from the medical malpractice. Being able to speak with knowledge about the types of damage recovery you are seeking for your injuries will help you communicate effectively with your legal team.
Wallace Wason, PLLC is dedicated to helping injured parties navigate the complex legal process to secure maximum compensation for damage caused by the negligence of others. Contact us for a free consultation.