Last updated: 12/18/2015
A patient injured by medical malpractice can recover a wide variety of damages -- from medical bills to the loss of enjoyment of life to future earnings losses. If the medical malpractice results in the patient's death, the patient's family and heirs can also recover damages.
This article covers the types of damages that patients and their families can recover in medical malpractice lawsuits, as well as some of the limits that states impose on the amounts that can be recovered. (To learn more about medical malpractice claims, read Nolo's article Medical Malpractice Basics.)
To get a damage award, the patient must show that:
The three categories of damages available in medical malpractice cases are general, special, and punitive.
General damages. General damages refer to the patient's cost of suffering that, although real, cannot by its nature have a definite price. The most common examples are:
Every case is different and there are no clear rules about how the exact amount of damages is determined. To arrive at a dollar value, the patient and others will give evidence about the patient's pain and suffering, loss of enjoyment, and so on. An expert might testify (give evidence) about the usual consequences of the patient's injury. If the patient is relatively young and will be impaired long term, expert testimony about how to estimate the value of lost earning capacity may be necessary.
Keep in mind that general damages aren't available for an injury existing before the malpractice, or the pain and suffering that a pre-malpractice injury, by itself, will cause in the future.
Special damages. Special damages cover the more quantifiable expenses caused by the medical malpractice, including medical bills and past missed work. Although there is often some guesswork involved, particularly when it comes to future medical expenses, special damages are typically more exact than general damages. An expert may still be useful, but in some states simply submitting a certified copy of the medical bill is good enough, depending on the facts of the case.
Punitive damages. In some circumstances, the patient may be able to recover punitive damages. The rules on when a patient may get punitive damages vary from state to state, but the general requirement is this: The doctor must have known that he or she was behaving in a harmful manner.
Example: A doctor intentionally leaves a sponge in the patient during surgery in order to create a reason for a second surgery to remove the sponge. This behavior would warrant punitive damages.
The exact amount of punitive damages is up to the judge or jury, but typically cannot be more than several times the amount of the special and general damages.
Many states place a cap on the maximum amount of damages the patient can recover. Some states put a cap on all damages combined, saying a patient cannot recover more than, for example, $500,000. Others have a cap only on "general damages," which means compensation for things like pain and suffering, loss of enjoyment of life, and the psychological impact of scarring or disfigurement. "General damages" are sometimes called “non-economic” damages, because they cannot usually be measured by a dollar amount.
For example, California sets a $250,000 limit on non-economic damages in medical malpractice cases. But there is no limit on economic damages, including compensation for past and future medical care, loss of past earnings, and diminished future earning capacity.
Many states also have rules that reduce the damages the doctor must pay by the amount the injured patient received from other sources like insurance. Finally, many states also have statutes that limit the amount the patient's attorney can charge for a malpractice case.
Get the details: State-by-State Medical Malpractice Damages Caps.
All states have laws determining what damages can be recovered if the medical malpractice results in the patient's death. These are called survival statutes and wrongful death statutes.
Survival statutes. Survival statutes allow the deceased patient's heirs or estate to recover damages that occurred during the time period from the initial medical malpractice to the death of the patient. These damages generally include everything allowed in a malpractice suit had the patient survived, except for damages relating to the future, like earning capacity. Some survival statutes also provide for recovery of funeral expenses, although this is usually part of the wrongful death statute.
Wrongful death statutes. Wrongful death statutes are designed to compensate the patient's family for their future monetary loss. The calculation is more thorough than a simple projection of future salary -- it also considers factors like the patient's spending, saving, and working habits. Compensation for the family's loss of companionship or emotional harm is typically not allowed under the wrongful death statues, although recently some states have allowed that kind of recovery. Depending on the state, not all family members can recover. For example, a state may allow the patient's spouse and children to recover damages, but not the patient's parents (at least in the case of an adult patient).
Because medical malpractice law is highly regulated by a complex body of rules, which vary considerably from state to state, it is often essential to get advice or representation from a lawyer.
For help on choosing a good medical malpractice attorney, read Nolo's article Finding a Personal Injury Lawyer. Or, you can go to Nolo's Lawyer Directory for a list of personal injury attorneys in your geographical area (click on the "Types of Cases" and "Work History" tabs to learn about a particular lawyer's experience, if any, with medical malpractice claims).