Medical malpractice happens when a patient is injured by the mistake of a healthcare professional. Medical providers are expected, by their patients and by the law, to provide a certain standard of care, and if they fall below that standard, they can be held liable for the harm that they cause. This includes paying financial compensation to the injured victim. In a medical malpractice case, compensation goes beyond the medical bills, lost wages, and other economic damages that can be calculated with receipts and invoices - it includes an amount for the pain and suffering of the victim. In many medical malpractice cases, pain and suffering is the biggest portion of the compensation award or settlement.
This article discusses how pain and suffering is calculated in medical malpractice cases. To find out more about medical malpractice in general, you may find our article, What is Medical Malpractice? helpful.
Understanding damages in medical malpractice lawsuits
Damages in medical malpractice lawsuits are broken down into the same categories that apply to general personal injury or wrongful death cases. Broadly, they are made up of economic damages, non-economic damages, and (sometimes) punitive damages:
- Economic damages are the victim’s quantifiable financial losses, such as their medical bills, lost wages and benefits, and home and vehicle modifications. This includes both past and future expenses. Calculating future expenses is an important but difficult process because it involves analyzing the victim’s medical prognosis, life expectancy, and expected career duration, as well as valuing the present cost of future medical treatment, wages, and other losses that can be quantified.
- Non-economic damages measure the harm to a victim that cannot be verified by documents such as bills and payslips. It is the “pain and suffering” and loss of enjoyment of life that a victim endures as a result of the medical provider's negligence. These damages are just as real as economic damages.
- Punitive damages are only awarded by a court when the defendant healthcare provider’s conduct has been reckless, malicious, or intentional. Punitive damages are intended to punish the defendant for their conduct. This is different from economic and non-economic damages, which are awarded to compensate the victim and put him in the position that he would have been in had the injury not happened.
What is pain and suffering?
Pain and suffering is a legal term. It essentially means all of the physical and emotional trauma that the victim suffers as a result of the medical provider’s substandard care. It includes:
- Any physical pain or discomfort from the injuries
- Physical pain or discomfort from treatment required for the injuries e.g. additional surgery
- Mental trauma or anxiety
- Post-traumatic stress disorder (P.T.S.D.)
- Cognitive changes caused by a head injury
- Scarring and disfigurement
- Loss of enjoyment of life
- Loss of the affection and companionship of a marital relationship (called loss of consortium)
This list does not cover all of the possible pain and suffering that a victim could endure, and be compensated for, after a healthcare provider’s medical negligence. Pain and suffering can be different in every case, and it depends on what the victim can show the jury has been suffered. When a medical procedure goes wrong, a patient’s pain and suffering can be substantial, which is reflected in high financial awards from juries for pain and suffering in medical malpractice cases.
Calculating pain and suffering
There is no set formula for calculating pain and suffering. It is determined by the jury that is tasked with deciding whether or not the medical provider is liable and how much the compensation should be. Therefore, how your lawyer presents your case to the jury is crucial to determining how much compensation you get for your pain and suffering. You need an attorney who understands what a jury values, uses top-notch experts, and has the skills to present your case in a way that will make a jury understand how much you have suffered, and how much your life has been affected, at the hands of a negligent healthcare provider.
Some of the factors that a jury will typically take into account, and which your lawyer should highlight when calculating an amount for pain and suffering in a medical malpractice case are:
- Severity of the injury.
A very severe injury can have a greater impact on the victim’s life in a multitude of ways - the pain and discomfort is increased in intensity and duration; the number of procedures and treatments are often greater; the physical scars may be worse; and there may be more mental trauma related to the injuries and scarring, as well as the accident itself.
- Duration of the suffering.
If a victim needs longer to recover physically and mentally from the accident, the amount of compensation awarded for pain and suffering will likely be more, simply because the suffering lasts longer.
- Impact on the victim's quality of life.
Pain and suffering compensates victims for how their lives have been affected, for the loss of enjoyment of their lives, and for loss of consortium (when a person is married). Typically, the pain and suffering award is greater when the effect on the victim’s life is worse. This can be very personal to the victim. For example, a seemingly minor finger injury could be catastrophic to a concert pianist, or a significant facial scar could be more emotionally traumatic for a teenager than a senior.
How juries choose to value pain and suffering in any given case is difficult to predict, as there are almost never any set metrics to measure an individual’s experience of pain and suffering. It is therefore crucial to retain attorneys who have litigated medical malpractice cases and who know how juries value these cases. Only attorneys, like the medical malpractice attorneys at Morris James, who have litigated cases and know how juries make awards for pain and suffering can put pressure on a defendant to pay a reasonable value for non-economic damages, either through settlement or a trial.
Tips for victims: How to ensure adequate compensation
When you are pursuing a claim for medical malpractice, your lawyers will advise you on what is relevant to the calculation of pain and suffering in your individual circumstances. Their role is important both in gathering evidence of your pain and suffering and presenting that evidence to a jury (or to the other side in settlement negotiations.) That is why the first and most important tip for a victim of medical malpractice is to choose a reputable medical malpractice lawyer that you trust to get you the compensation you deserve.
A medical malpractice attorney should thoroughly investigate your case, and will likely bring in medical experts and other experts as necessary, to support and explain the evidence. Your attorney will handle your case for you, so the most important thing that you can do as a victim is to focus on your well-being and assist your attorney by providing the evidence that your attorney needs to be successful. Here are some of the things that you can do to ensure adequate compensation in your medical malpractice claim:
- Keep copies of all your medical records and a diary of your procedures and treatments, including care for your mental health.
- Keep a copy of all employer documentation, tax returns, and a record of the work hours/days/opportunities that you miss.
- Keep a record of the non-work related activities and events that you have to miss due to your injuries (e.g., an important family reunion or once-in-a-lifetime foreign trip).
- Keep a journal of how you are feeling physically and mentally as you recover from your accident.
- Take photos or videos of your physical disfigurements and scars.
- Stay off social media, which can be misinterpreted and used against you.
There may be other evidence that is specific to your case, such as photos or videos of your life before the accident, that will be helpful in your medical malpractice claim. Every case is different. Your attorney will discuss what is relevant in your case with you as you proceed with your claim to help you get the compensation you need to recover from your injuries.