Types of Compensation for Medical Malpractice

An overview of different damages that are available to a medical malpractice plaintiff.

Compensation for medical malpractice lawsuits -- referred to as damages -- is measured in dollars, as is the case in nearly every kind of personal injury claim. Whether the case is settled with an insurance company on behalf of a hospital or doctor, or is tried in civil court and a jury renders a verdict, the bottom line will always be the amount of money (or lack thereof) paid to an injured patient. Settlements and verdicts aren't calculated out of thin air, however. There are a few specific types of compensation available if you have a medical malpractice case, and we'll examine them in this article.

Economic Damages in Medical Malpractice Cases

Economic damages are quantifiable damages resulting from a medical malpractice injury (or death). Economic damages include such things as medical expenses (both past and future) attributable to the malpractice, lost income or wages, the loss of future earning capacity, and the cost of rehabilitation.

Also included under economic damages is the cost of replacement services, which are things that the plaintiff would have taken care of personally (like household chores and child care services) but cannot be performed now because of the malpractice. Modification to a plaintiff’s home to accommodate a disability is also considered an economic damage.

Economic damages, when properly supported by bills, receipts or other proof, are the easiest damages to recover.

While loss of future income and lost wages can occasionally be tricky to calculate, economic damages are generally very straightforward. Lawyers, adjusters, juries and accountants can look at receipts, pay stubs and various other forms of proof and simply add up the total.

Actuarial tables, while by no means simple, are used to determine any future damages, and attorneys and adjusters know how to use such resources appropriately. As long as a plaintiff keeps excellent records, calculating economic damages should be relatively painless.

Non-Economic Damages (Including Pain and Suffering)

Non-economic damages include compensation for pain, suffering, humiliation and other intangible (but no less valid) types of fallout that accompany most medical malpractice cases. (Learn more about pain and suffering damages in context of a medical malpractice lawsuit.)

When you hear of cases with multi-million dollar verdicts, the majority of those awards usually consists of non-economic damages. Non-economic damages can be tricky to calculate, difficult to justify, and even harder to obtain.

Unlike economic damages, non-economic damages can be subject to statutory medical malpractice damage caps. Many states have adopted a philosophy that can collectively be referred to as “tort reform.” One of the main tenets of tort reform is that by passing laws regulating how tort lawsuits are filed and handled, frivolous suits will be discouraged and all of a jurisdiction’s population will benefit.

This is all well and good until you suffer a catastrophic injury and discover the road to the courthouse is riddled with statutory landmines. Damage caps are a huge component of tort reform, and caps on non-economic damages are not uncommon.

Damages caps effectively limit how much an injured party may recover in non-economic damages. Caps can range from a couple hundred thousand dollars to close to one million dollars. While proponents of tort reform believe the system is fair, plaintiff advocates contend that injured parties are the ones that suffer from such “arbitrary” limits on how much they may recover for injuries that could affect the course of their lives.

Is there a medical malpractice damages cap in your state? Find out in our State Medical Malpractice Laws section.

Punitive Damages

Punitive damages, which are relatively rare in medical malpractice cases, are damages designed solely to punish a negligent defendant.

Punitive damages are not available in every medical malpractice case, nor in every jurisdiction. Their availability varies depending on state law. Often, punitive damages are available only in cases involving intentional or grossly negligent malpractice. Judges, as opposed to juries, are the usual arbiters of punitive damages, and like non-economic damages, punitive damages may be subject to statutory caps.