CHAPTER 25 Damages in Medical Malpractice
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.
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.
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:
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