What are “Damages” in Medical Malpractice?

Learn More

Video Transcript

Timestamps
0:00 Intro
1:16 Damages – Lost Income
1:53 Damages – Additional Medical Expenses
2:18 Damages – Permanency
2:31 Damages – Expenses

The question is, what are damages? Well, you basically, to have a successful action in negligence, and this is medical negligence, malpractices we commonly call them, you have to have a duty of the treater to the individual patient.

That duty has to be breached. That is, that individual did not perform his or her responsibilities in dealing with that patient in the same way that a similarly trained individual would have under similar circumstances.

Then you have to have causation. That is you have to have the fact that the breach in the duty caused, and this is the fourth factor, damages. So again, duty, breach, causation, and damages.

1:16 Damages – Lost Income 

What are the damages? Well again, lost income, whether it be through work. It might be just an hourly/salaried individual, or a person receiving an hourly wage. It may be someone receiving a salary. It may be someone working for themselves. In these cases, you look back and you determine what an individual’s income was prior to the alleged act of negligence, you look at it thereafter, and you determine the income that that individual lost through the action of negligence. In that particular case, you can put a number on that for calculating damages.

1:53 Damages – Additional Medical Expenses

You then may have additional medical expenses. Again let’s say a failure to diagnose leads to a need for surgery that otherwise may not have been needed. Well, in that case, the medical expenses paid for that surgery becomes one of your damages. So again, that’s added into the pot for calculating up the total amount of damages you’re dealing with.

2:18 Damages – Permanency

And then again, any element of permanency. Was the person partially disabled as a result of the negligence? Were they permanently disabled and did they die? All of these factor into the calculus.

2:31 Damages – Expenses

Finally the expenses. Let’s say medical equipment is involved. It may be something as simple as a set of crutches. Or it may be purchasing a very expensive medical device for usage in the home. All of these factor into the calculus. As do things even like mileage. Getting back and forth from your home to the treating physician who you might not have ever needed to see had an illness been timely diagnosed. All of that factors into the calculus. You do the math, you add it up. You factor in the contingency value of the success with the case versus the possibility that bringing the case to trial might not be successful. And you have to factor all of that in to come up with a proper settlement value.

So again, and I think I’ve emphasized and I don’t want to in any way underemphasize, the fact that experience and a knowledge base that is vast, particularly involving the area of medicine or healthcare that may be involved, can really help you in a good outcome versus a less optimal outcome in these cases.