If you're considering filing a medical malpractice suit, it's important to understand what damages and damage caps are and how they can affect your case. Here's what you should know.
What are medical malpractice damages and damage caps?
Each medical malpractice case has both "hard" and "soft" damages involved. "Hard" damages are easier to quantify (though often disputed) because they rely on established facts and figures of known losses and statistical estimates of future losses (which is usually where the disputes come in).
Damage caps put limits on how much a judge or jury can award in any one medical malpractice claim for punitive or other "non-economic" damages like pain and suffering. These are considered "soft" damages because they aren't based on any easily quantified figures. It's often difficult to put a clear dollar amount on an individual's pain or suffering, although victims' attorneys have to try. The defense, naturally, would like to limit those "soft" damages as much as possible. In some states, the laws help the defense do just that through legislative caps.
How are damages determined and how severe are the damage caps?
When you file a medical malpractice claim, you'll generally request several different types of compensation. If you look carefully at any malpractice lawsuit, you'll note that the plaintiff's attorney always makes a list of the different losses suffered by the victim. That's because each of those losses has to be noted in order to be evaluated as part of the claim. While individual cases vary, there are some specific things that you can usually expect your attorney to list as part of your claim:
- the cost of all your medical expenses related to the malpractice up to this point
- an estimated cost of your future medical expenses related to the malpractice, from now until the probable end of your life (based on statistics and any other factors)
- the lost wages you've already suffered or that your spouse has suffered as a result of the medical malpractice
- the amount of future income you're projected to lose in the future due to the malpractice
- any other "hard" expenses, like hotel bills for out-of-town treatment, medication co-pays, and so on
There's no limit in any state (yet) on economic damages. Malpractice attorneys work hard to establish every dollar they can of economic damages that they can claim for their clients—because they may be limited on how much they can claim for your soft, non-economic damages.
Your attorney will list your pain and suffering as part of your complaint because any medical malpractice claim involves some amount of pain and suffering on the part of the victim. However bad the suffering you've endured or will endure, however, some states limit what you can collect. While that may seem like a lot, it might not really be much if you're facing a lifetime of pain or disfigurement because of a medical error.
For more information on how damages work in your state and what damage caps do or don't exist, discuss the issue with an attorney via law firms like R.J. Marzella & Associates, P.C.