Just yesterday I was on a conference call with a client about what the damages were in her case.
Damages is such an odd word. One may think of the “damage” caused by a break in, or natural disaster as a way to navigate the term’s depth, but in a law suit, it has a very specific meaning.
Damages, is what the law says you can recover in a civil lawsuit. That item of harm for which you can seek some level of financial compensation. An articulable and calculable loss – not a speculative one.
In medical malpractice cases where the patient survives, and is filing the case themselves, damages can be calculated by a number of factors, including:
- Lost Wages (did you lose your job as a result of the surgical error? Miss months of work? Were you unable to perform your job and got a pay cut?)
- Medical Bills (did the delay in diagnosis lead to additional surgeries or hospital bills? Did the mistake in surgery #1 lead to surgeries #2 and #3?)
- Pain and suffering
I am hesitant to even define the later category of damages (pain and suffering) because it is so difficult to define adequately.
In one patient, a broken ankle may be life and career changing - which may lead to mental health treatment, depression, end of a marriage - truly, an awful experience that causes years of physical and emotional pain. While another patient may suffer a hardship, because of their internal strength and resolve - move past it, and have no real ongoing pain associated with the negligent care.
It isn’t better to have suffered more. In fact, it is always easier to explain to a jury or judge that plaintiff Smith’s life was forever changed. However, their personal resolve to move past the bad and embrace the good, to let it go and not live daily in the pain or suffering shows what strong people with strong family support can do.
More pain, isn’t always better in a malpractice case.
We don’t always innately want to award or reward the suffering of others.
But to quantify another’s suffering, to put a price tag on it, is often difficult. For example, what do you think is the most painful experience suffered by a victim of surgical malpractice?
- Undergoing 5 additional repair surgeries to fix a surgical mistake
- Losing your job because of a surgical mistake
- Not being able to pick up your young child because of a surgical mistake?
- Losing your sense of self due to a surgical mistake?
It is hard to judge or quantify the above loss, and yet, in a recent case, the client’s most palpable loss was not being able to pick up and carry his child, while the law and defense lawyers saw the loss of wages as the most painful experience and the highest area of “damage.”
So while the cost of a medical malpractice incident on your life and your family may be great, and hard to measure, the law allows you to recover very defined areas of damages.
What Virginia does not allow, is any recovery of your loved ones who helped you through this difficult time. If your Mom quits her job to care for you, her lost wages are not recoverable. Only yours. In other words, not all the items of damages can be recovered in a lawsuit.
Nor does the law allow you to recover for speculative damage. For example, it would be hard to prove “had I not missed that work, I would have gotten that raise and promotion therefore my damages include that loss.” Sure, if your boss is willing to state underoath the only reason you didn’t get that raise was because of your new injury, you might be able to claim that as damages, but without that direct evidence, such claim is speculative and not likely admissible.
In sum – damages vary from case to case, and wildly vary from person to person.
One of the first things we do as we investigate a case, is to determine the scope of financial damages. Why? Because not every case is financially viable for clients.
For additional information on when costs of litigation outweigh damages, go here.
Until then – please let us know if we can help you investigate your care, and potential damages.
Lauren Ellerman
