Damages in Medical Malpractice

CHAPTER 25 Damages in Medical Malpractice



Robert A. Bitonte, M.D., J.D., M.A., LL.M., F.C.L.M.




GOLDEN RULES



1. Do not try to make a fool of the jury.

2. It is essential to know the status of the plaintiff, before the incident, extremely well.

3. Hire an expert to assess damages and prepare a Life Care Plan if necessary.

4. Be familiar with new and existing statutes that may limit damages recoverable.

5. Know your policy limits and any limitations.

6. Know the amount of damages that have been awarded in similar cases.

7. Never alter medical records.

The reader of this Handbook by now has learned the basic tenets of medical malpractice. To be found liable for medical malpractice, a physician must deviate from the standard of care, cause harm, and the patient must sustain damages.


It is this last element that this chapter addresses. Damages are not to be equated to physical harm alone in the context of medical negligence litigation. In fact, damages can be alleged and found in instances where there is no actual physical harm done or found. Damages are best thought of as the quantification in dollar terms of the total value the plaintiff seeks to obtain from his or her litigation. This includes economic losses and noneconomic losses, from the time of his alleged harm to the end of his life expectancy.


Most physicians and some attorneys become preoccupied with the issue of whether the accused physician breached the appropriate standard of care. Some defense attorneys do not appreciate that an often subtle physical harm can cause enormous money damages, and do not devote enough time and resources to the evaluation of this component of a medical negligence claim. This can be a disastrous oversight. For example, any injury to any person requiring daily attendant care for just a few hours per day for the rest of the plaintiff’s life can easily justify a claim of seven figures.


Savvy plaintiffs’ counsels, as well as defense counsels, are well aware of the costs of medical negligence litigation. Professor Frank McClellan,1 in his book on medical malpractice, states that assessing the merits of any case costs at least $2000, and most cases require an expenditure of $5000 to $10,000. If the case goes to trial, costs may exceed $50,000, and expenditures of $75,000 or more are not extraordinary. Average defense costs are equally expensive. In a 1991 article, the author cites $34,500 as the average defense cost of 45 cases that went to trial in North Carolina. It can be no wonder then that an experienced attorney who proceeds with a medical negligence case feels that the potential reward outweighs the cost and potential loss, by a lot. If damages are viewed as the score of the litigation contest, the plaintiff’s goal is to run up the score. As a defendant, limiting damages to only reasonable is the goal.


To evaluate damages properly, one must know what they are, and how to affix a dollar amount to each.




CASE PRESENTATION


Mrs. Smith is a 55-year-old, non-insulin-dependent diabetic of ten years’ duration. Her attention to her diabetes was less than optimal, and she developed skin ulcers on her left foot previously that had healed with some extensive treatment. She had developed chronic skin changes over both feet, indicating compromised circulatory status of both feet. Prior to her alleged injury, secondary to medical negligence, there was no medical evidence of fallen arches in either foot. There was credible evidence of osteopenia of both feet.


During a physical examination by a physician, Mrs. Smith states that her right ankle, after a range of motion examination, “popped,” and she could not walk on the foot/ankle because of pain.


Mrs. Smith went to an emergency room the same day. She was examined. No swelling was noted, and no x-rays were taken. She was given crutches. An Ace wrap was applied, and she was given some nonopiate pain relievers. She was to follow up with a local physician.


After failing to return to the follow-up examination, Mrs. Smith returned to the emergency room two weeks later complaining of increased pain and swelling of her right foot and ankle. Swelling was apparent and x-rays revealed a trimalleolar fracture that was operated upon, and repaired with hardware. Several months after her original surgery she dislodged some of the hardware, which had to be eventually surgically removed. Approximately one year after her injury, she developed a fallen arch on the injured right foot and now walks placing weight on her midfoot covered only by thin skin and no fat pad.


The medical record revealed that Mrs. Smith was not working at the time of the alleged injury and that the only job she had in the prior ten years was of a part-time salesperson in a retail budget store.


For purposes of this chapter and analysis, we will assume that the examining physician did in fact fall below the standard of care in the evaluation of Mrs. Smith and also that this fall below the standard of care caused the right ankle and foot fracture, as well as the fallen arch.


The ultimate question is, “So what? What are the damages that can be proved with some credibility?”



ISSUES



Introduction


It is fundamental in tort law that the plaintiff is entitled to be made whole, to be compensated fully for all loss sustained by the tortfeasor’s negligence.2 To the extent possible, the injured party is to be restored to the position he or she would have occupied had no wrong occurred. It is also fundamental law, however, that an aggrieved party cannot recover remote, contingent, or speculative damages.


There are generally two classifications of damages in medical negligence, as well as in other negligence actions. These classifications can be extremely important, as some states have enacted statutes that limit the recovery available in one or both of these categories. In other states there are no limitations.


One classification of damages is called general damages, which cannot be fixed with any degree of money exactitude. General damages (Table 25-1) include physical and mental pain and suffering, loss of enjoyment of life, and impairment of future earning capacity. See Table 25-1 for a more complete listing of legally cognizable losses. One should also keep in mind that some jurisdictions have a more restricted or permissive view of available categories of losses. These hard to exact damages are also referred to as noneconomic damages.


Table 25-1 A list of specific elements of damage






Physical injuries:
Past loss of earnings capacity

Future loss of earnings capacity

Medical care expenses—past and future:
Physicians

Hospitals

Therapists

Attendant care

Nursing care

Supportive equipment

Diagnostics

Pharmaceuticals

Transportation

Supplies

Physical pain and suffering

Mental pain and suffering

Disfigurement

Loss of ability to enjoy life

Curtailment of life expectancy

Increased risk of future harm

Related posts:

  1. Professional Liability Insurance
  2. Medical Malpractice Stress Syndrome
  3. Improper Disclosure of Confidential Information
  4. Neonatology and Pediatrics

Stay updated, free articles. Join our Telegram channel
Tags:
Mar 25, 2017 | Posted by in GENERAL & FAMILY MEDICINE | Comments Off on Damages in Medical Malpractice

Full access? Get Clinical Tree
Get Clinical Tree app for offline access