Medical malpractice awards: what can I expect?
Individuals who have been injured due to the negligence of a medical professional may be entitled to compensation for their injuries. All injuries or negative results from a medical procedure, however, do not constitute medical malpractice. Medical doctors cannot guarantee a medical result and winning your medical malpractice claim will require proving all of the elements of a personal injury claim.
Even if you have a strong medical malpractice claim, it is important to understand that these cases are the most difficult to win; most of them are settled out of court; and for the cases that do go to trial, the majority are won by the doctor. Cases can also take years to litigate with the medical malpractice lawyer taking a large percentage of the award if the case is settled or if the plaintiff is awarded damages by the court.
Finally, due to the high cost of filing a medical case in court, including the cost of hiring medical experts, writing reports, gathering testimony and preparing for trial, many cases—that do not have a high payout—are simply not worth pursing, even if negligence and causation can be proven.
Compensatory Damages for a Medical Malpractice Case
Compensatory damages are monetary payments made to the plaintiff to compensate or pay them for a particular loss or injury. Compensatory damages differ from punitive damages, which are not intended to repay the victim, but rather to punish the accused for their negligent or intentional actions.
Compensatory damages can include economic damages, such as payment for current and future medical bills, current lost wages, future earning capacity and property damage. Compensatory damages can also include non-economic damages, often referred to as "pain and suffering," including mental suffering, emotional distress, loss of companionship, depression, fright, mental anguish, humiliation, embarrassment, physical pain, anxiety, loss of consortium and grief.
Calculating economic compensatory damages may be as simple as adding all of your receipts together. Non-economic damages, however, can be much more difficult to calculate.
Before accepting any type of settlement offer for compensatory damages, it is important to consult with a personal injury lawyer who understands personal injury law and has expertise in settling cases similar to your case.
Punitive Damages for a Medical Malpractice Case
In some cases additional compensation, referred to as "punitive damages," may be awarded to a personal injury plaintiff. Punitive damages, however, are only assessed if the court determines that the defendant acted with reckless, gross, wanton or malicious negligence, and the court wants to send a strong message to not only the defendant, but to other individuals or entities who would consider repeating the actions that led to the injury.
Although punitive damages are allowed under current United States civil tort law, most courts do not award punitive damages in most personal injury claims. In fact, it is estimated that approximately 2% of civil cases are awarded punitive damages with an average payout of $40,000.
State Caps for Personal Injury Settlement Awards
Due to public outcry and a growing concern regarding the increasing costs of health care, more than half of the U.S. states have passed some type of cap for medical malpractice awards. Although most of the caps apply only to non-economic damages (i.e. pain and suffering), some states have also capped all forms of medical malpractice compensation.
While supporters of the caps argue that they are doing exactly what needs to be done to reduce medical costs, others claim that non-economic caps can be problematic and do not allow victims to be fully compensated for their losses or injuries.
Others claim that despite tort reform, doctors continue to fear that they will be sued for medical malpractice injuries and continue to practice defensive medicine, which drives the costs of medical care higher and higher.
How long will it take to receive payment for my personal injury?
If you have been injured due to the negligence of a medical professional and decide to settle or take your case to court, it can take years to receive payment. If the case is complicated, if liability is difficult to prove, if it is not clear that you have a right to sue, if you have not reached your maximum medical improve level, or if you are seeking a high settlement amount, it can take even longer than the average case.
For example, an insurance company will not be willing to make a large settlement payout if they have not completely investigated the case, including validating that your injuries are severe, that you are a credible plaintiff, and that the doctor does not have a strong defense.
Insurance companies may also stall or use delay tactics to force you, the plaintiff, to accept a smaller compensation settlement.
If you believe that the insurance company is not negotiating in good faith, or if you are willing to settle more quickly by taking a lower settlement offer, talk to a good medical malpractice lawyer.