You have probably heard of lawsuits including damages for “pain and suffering.” But you may not have thought about exactly what that means. If you have been injured by medical malpractice, damages for pain and suffering could be considerable.
To understand damages for pain and suffering, it’s helpful to back up and talk about damages in a civil lawsuit in general. There are three basic types:
The damages in a medical malpractice case are usually compensatory damages (though punitive damages or a nominal award may be appropriate in some situations). Compensatory damages are further divided into two types:
It is no surprise that medical malpractice victims are entitled to recover for their pain and suffering. But since non-economic damages are, by definition, not tied to a specific dollar amount, how are they calculated?
Damages for pain and suffering are obviously subjective, but that does not mean that they are not real or worthy of being addressed. How does a jury determine what a medical malpractice victim’s pain and suffering are worth?
There is no foolproof formula for determining pain and suffering damages, but there are a number of factors that may be taken into consideration. Loss of a body part, or a permanent loss of function due to an injury are likely to result in an award of damages for pain and suffering. The severity of the loss plays a role, too. There would likely be a smaller award for loss of a finger than loss of a hand; likewise, loss of a non-dominant hand would probably result in a smaller award than the victim’s loss of their dominant hand.
The injury victim’s stage of life is a consideration as well. A young woman who has not yet had the chance to have children would probably be entitled to more compensation for the needless loss of her uterus than a post-menopausal grandmother.
Damages for pain and suffering are for physical pain, but also mental and emotional pain. Unrelenting back pain is compensable; so is the depression that often stems from a permanent back injury that didn’t need to happen.
In general, courts and juries consider the impact of the injury on the victim’s life. A young father who was paralyzed in a botched surgery will never again be able to play catch with his little boy or dance with his wife. A professional dancer whose leg must be amputated due to a needless infection loses not only her livelihood, but the activity that gave her life meaning. In other words, the finder of fact in the case needs to consider not only the injury, but how it will affect the victim going forward.
And yes, even with guidelines to follow, the determination of pain and suffering damages is still a subjective exercise. With economic damages, there are concrete figures: these are the victim’s medical bills to date; this is the likely future cost of medical care. This is what the victim was earning before his injury; these are the number of work years lost. With non-economic damages such as pain and suffering, an attorney representing a medical malpractice victim cannot simply pull out a spreadsheet; he has to make the victim’s life and loss come alive.
Various states also impose legislative caps on damages for personal injury and wrongful death claims. These caps vary between states and can be impacted by recent developments by appellate court decisions regarding the constitutionality of caps. Governmental bodies and quasi-governmental bodies (such as Oregon Health & Science University in Oregon) are also protected by caps on damages.
Persuading a jury to award damages for pain and suffering requires an attorney to vividly portray the injury victim’s loss—to tell a story that causes a jury to imagine themselves in the victim’s shoes (or wheelchair). But the attorney must also “connect the dots” for the jury. As tragic as a victim’s life-altering injury may be, if the attorney does not prove the elements of medical malpractice, the victim is not entitled to recovery.
An experienced Oregon and Washington medical malpractice attorney excels not only at telling the victim’s story, but at proving their case: the medical provider had a duty to the patient; the provider breached that duty; the victim’s injury resulted from that breach; as a result of the injury, the patient has damages. An attorney who focuses exclusively on medical malpractice will be able to present evidence and the testimony of witnesses and expert witnesses in such a way that the need for an award of damages for pain and suffering is an unavoidable conclusion.
The point of a medical malpractice case is, as far as is possible, to help you get back the life you had before your injury. Damages for pain and suffering are an important part of that. If you have more questions about what can be considered in an award for pain and suffering, we invite you to contact Huegli Fraser.
The information in this blog post is provided for informational purposes only and is not intended to be legal advice. You should not make a decision whether or not to contact a qualified medical malpractice attorney based upon the information in this blog post. No attorney-client relationship is formed nor should any such relationship be implied. If you require legal advice, please consult with a competent medical malpractice attorney licensed to practice in your jurisdiction.
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