A patient injured by medical malpractice can recover a wide variety of "damages," which means compensation for losses resulting from the health care provider's mistake or other wrongdoing. Here's what to know at the outset:
In order to collect damages—whether through an out-of-court settlement or at trial—a medical malpractice claimant must show that:
Let's look at the three categories of damages available in medical malpractice cases: general, special, and punitive.
General damages (sometimes called "non-economic" damages) refer to the non-financial effects that the medical malpractice has had on the patient and on their life. The most common examples are:
Special damages (also called "economic" damages) cover the more quantifiable, financial impacts of the medical malpractice, including:
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 witness might testify (give evidence) about the types of consequences that typically follow from the kinds of injuries or medical complications suffered by the patient. If the patient is relatively young and will be impaired long term, expert financial testimony about how to estimate the value of lost earning capacity may be necessary.
In some rare circumstances, an injured patient may be able to recover punitive damages as part of a medical malpractice lawsuit. The rules on when punitive damages might be available vary from state to state, but they're always meant to punish the wrongdoer for conduct that goes far beyond mere negligence and toward:
The exact amount of punitive damages is up to the judge or jury, but judges typically have leeway to reduce an excessive award.
As we mentioned above, the nature and extent of an injured patient's damages typically drive the value of their potential medical malpractice case, but other considerations matter too. The specific factors that carry the most weight when figuring out how much a patient's claim might be worth include:
Most injury-related insurance claims and lawsuits settle at some point, meaning the injured claimant typically gets something in the way of compensation from the at-fault party. But compared with, say, car accident cases, medical malpractice claims are notoriously difficult to win, and it's not uncommon for an injured patient to come away with nothing.
Every medical malpractice case is unique, so it's impossible to know whether a specific case will settle, and if so, what the average settlement amount might be. There are far too many variables at play. Many of these cases come down to a so-called "battle of experts," with the patient's side arguing that the health care provider fell short of the appropriate medical standard of care when treating the patient, and the provider's team arguing that the care provided was more than adequate under the circumstances.
All of this is why it's crucial to have an experienced medical malpractice lawyer on your side, to make sure you put your best case forward.
Keep in mind that a medical malpractice case can settle at any point, even before a lawsuit is filed. Once the parties do go to court, the case will proceed along a fairly predictable timeline, but settlement is possible at any stage. Learn more about filing a medical malpractice lawsuit.
The majority of states have passed a law that places some sort of limit or "cap" on the amount of damages an injured patient can recover in a medical malpractice case.
A few states put a cap on the total amount a medical malpractice plaintiff can receive, across all categories of damages. Most states cap only "general damages," which as we discuss above means compensation for things like pain and suffering, loss of enjoyment of life, and other non-economic harm resulting from the health care provider's wrongdoing.
For example, California caps 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 on state-by-state medical malpractice damages caps.
All states have laws determining what damages can be recovered if medical malpractice results in the patient's death. The two most common avenues for financial recovery here are survival actions and wrongful death claims.
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 harm to the patient's earning capacity.
When medical malpractice results in a patient's death, wrongful death laws can be used to ensure compensation for the patient's family members and others. The specifics of who can recover through a wrongful death case, and the kinds of losses that are compensable, depending very much on the specifics of state law. 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).
From analyzing complicated medical records to complying with special court requirements for filing a lawsuit, medical malpractice cases are complex on almost every front. Having an experienced legal professional on your side is crucial. Your lawyer (often with their trusted team of experts) will put your best case together and will navigate each step on the litigation path to ensure you get the best result.
Learn more about getting legal help with a medical malpractice case, and use the features right on this page to connect with an experienced lawyer in your area.