Medical Malpractice Newsletter
Wednesday, May 22, 2013
- Recoverable Damages for Victims of Medical Malpractice When a doctor or other health care provider engages in conduct (or fails to take action) that results in a patien...
- A Claim for Dental Malpractice Due to Nerve Damage Dentists and oral surgeons are expected to provide a standard of care that other competent and reasonable dentists and o...
- HMO Liability in Medical Malpractice Cases Some state medical malpractice laws granted patients the right to sue their Health Management Organizations (HMOs) for a...
- Informed Consent and Medical Malpractice Prior to initiating any medical procedure, a health care provider should obtain the patient's "informed cons...
- Sale of Structured Settlements Payments Many people enter into a "structured settlement" as a result of recovery on a legal claim, such as personal injury, medi...
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Recoverable Damages for Victims of Medical Malpractice
When a doctor or other health care provider engages in conduct (or fails to take action) that results in a patient's injury or death, the patient and/or family may have a medical malpractice claim. Most cases are based upon a theory of negligence: that the care provided failed to meet required generally accepted standards of care. Although the standard of care varies by state and the medical specialty at issue, it is generally defined as what a reasonably competent health care practitioner would have done under the same or similar circumstances.
Recovery of Damages
Victims of medical malpractice may sue and seek recovery for all damages directly resulting from malpractice, including actual economic losses and "non-economic" damages. The amount awarded for damages usually depends on many different factors, such as the severity of the injury, the degree of negligence involved, pre-existing injuries and past medical history. Often, the award is higher where there is a significant difference in the victim's quality of life before and after the injury.
Economic damages may include:
- Costs of reasonable and necessary medical care
- Rehabilitative services
- Loss of earnings
- Estimated reasonable costs of future medical care and expenses
- Loss of earning capacity and potential future income
Non-economic damages are more difficult to assess, but may include:
- Physical pain and suffering
- Mental and emotional suffering
- Physical impairment or disfigurement
- Loss of enjoyment of life
- Loss of consortium (disruption of intimate relations with a spouse)
Punitive damages are intended to punish and deter others from similar conduct, rather than compensate. The burden of proof that must be established prior to receiving such an award varies by state. But generally, there must be clear and convincing evidence that the health care provider acted intentionally or in "reckless disregard" of a known danger to the patient's safety and welfare. Due to this stringent standard, punitive damage awards are rare in medical malpractice cases.
Damages for a Victim's Family
Damages may also be awarded to a victim's family to compensate for the loss of care, companionship, love and affection. Additionally, "wrongful death" damages may be awarded to the family. These types of awards also vary by state and may include:
- Medical and burial expenses
- Loss of income that would have supported family members
- Emotional suffering
- Loss of the pleasure of the family relationship
Limits on Damage Awards
Many states have laws that limit the amount of damages in malpractice cases (usually for non-economic damages). Many of these laws were prompted by complaints from health care providers and other organizations such as the American Medical Association regarding claimed excessive jury awards and resulting increased premiums for malpractice insurance.
In July 2003, a federal bill, H.R. 4280, that would have limited non-economic damage awards in medical malpractice cases was narrowly defeated in Congress. In May 2004, after being reintroduced, the bill was passed in the House, but was never passed by the Senate. Some of the stated purposes of the bill included the following:
- Increase the availability of health care services which have become less available where liability actions are shown to have been a cause of the decreased availability
- Reduce the occurrences of "defensive medicine" and reduce the costs of health insurance
- Ensure that individuals with "meritorious" health care liability actions are treated equitably
- Provide standards regarding the availability and limits of damages awards in health care lawsuits in order to improve the "fairness and cost-effectiveness of our current health care liability system."
- Increase the sharing of health care information in order to improve patient care
Critics of the bill asserted that increased malpractice insurance rates are a result of bad investments by insurance companies, not awards in actual cases. Even though H.R. 4280 never became law, given the extent of the U.S. health care crisis, it appears likely that similar legislation will continue to be introduced in the future on both federal and state levels.
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