Damages and Awards

Damages and Awards in Medical Malpractice Cases

The voice at the other end of the phone says, “My mother was terribly hurt at the hospital. Will you take my malpractice case?” How should the attorney or the office staff taking this call respond? Medical malpractice cases are among the most complex and costly in the plaintiff personal injury law firm. Careful screening of these cases will avoid much fruitless work and expense. This article will focus on the evaluation of damages as well as recent award trends in medical malpractice cases.

One model of screening the medical malpractice case suggests that the attorney should evaluate the four components of liability in their order: duty of the healthcare practitioner to the patient, breach of this duty, proximate causation of damages and damages. A more useful model is to first evaluate damages, before even addressing duty, breach of duty and causation issues.

Given the estimated $25,000-$100,000 cost of bringing a medical malpractice case through five or more years of litigation before trial, it is essential to understand the damages alleged by the plaintiff. The severity and permanency of the injuries must both be considered. Some of the questions to ask when the phone call comes in as described at the beginning of this article include: What happened to your mother? Who said she was injured? How old is your mother? Is she working? Did she lose work as a result of the injury? Have the injuries been permanent? What is her current condition? What was her health before the incident?

High damages cases
Significant injuries are relatively easy to identify during the initial screening. An analysis of plaintiff verdicts in medical malpractice cases1 showed that between 1994-2000 the most frequently claimed injury was other, followed by death. Birth injuries, cancer diagnosis, delayed treatment, (incorrect) diagnosis and medication errors resulted in the highest verdicts. The highest median award was given for severe brain injury ($4,280,000). Median award refers to the middle value or the norm among awards arranged in ascending order.

The median compensatory award in 2000 was $1,000,000, up from $700,00 in 1999.

Low damages cases
Clearly the low to moderate damages cases outnumber the significant damages claims. These claims can eat up the resources of a law firm, with sometimes disappointing results. Low damages cases tend to fall into several categories:

Podiatric or chiropractic: Unless the person has a loss of a foot or part of afoot, or develops paralysis as a result of chiropractic manipulation, these are low damages case.

Minor treatment injuries: Minor treatment injuries, such as suturing a wound and leaving behind glass or embedded objects, or loss of a toe, are low injury cases.

Eye cases: Eye cases include the common allegation of a bad outcome after cataract extractions. Eye cases that are difficult to defend include loss of vision due to prolonged use of corticosteroids, failure to diagnose glaucoma, failure to diagnose a penetrating foreign body, and failure to diagnose an infection. Eye records are challenging to interpret and therefore can complicate the screening of these types of cases.

Dental cases: Dental cases include loss of a tooth or nerve injuries following extraction of a tooth or surgery. In teeth cases, the expenses of the treatment must be balanced against the expenses which would have been incurred had the malpractice not occurred. Osteomyelitis of the jaw after dental surgery is an example of a high damages claim for this category of malpractice. Like eye records, dental records are usually difficult to read.

Surgical scarring or bad results from plastic surgery such as a face lift or tummy tuck may occur. The jury may feel little sympathy for these patients. An exception may be deformity of the face caused by failure to diagnose a postoperative infection or an error in surgical technique. The pursuit of these claims is frequently hampered by the difficulty in finding affordable plastic surgeons willing to act as expert witnesses.

Burns, unless they are to exposed parts of the body such as the face or hands, are low value cases.

Time limited damages with no permanency such as a brief overnight admission to the hospital following a medication error, or anger over the treatment provided by the healthcare provider are low damages cases.

Bad outcomes in very sick people are difficult cases to litigate. Damages of significant intensity (such as death or amputation) may lose their impact when the patient was critically or terminally ill. These cases are time consuming and costly to screen, given the costs of obtaining the volumes of medical records and the time needed to wade through the medical chronicles. These cases may additionally be complicated by the difficulty in convincing the plaintiff that while the outcome was severe, the case would be complex and expensive to pursue, with no guarantee of success.

Bad outcomes not affected by missed or delayed diagnosis such as terminal cancer or chronic incurable diseases and difficult to litigate. A delay in diagnosis may have had no impact on the patient’s prognosis. These cases require careful screening to determine the nature of the condition and the availability of effective treatment.

Moderate damages
Moderate damages cases, as defined by the typical size of the award, in the last decade resulted in median verdicts ranging from $355,000-$668,000. These included (in order of lowest to highest median award): negligent supervision, negligent surgery, nonsurgical treatment, lack of informed consent and medication errors. Medication errors resulted in a median award of $668,000, the highest of the moderate damages awards.

If the case meets the criteria of having sufficient damages to warrant further investigation, consider using a medical professional to screen the case to look for plausible explanations for the damages. Determine in advance if the screening professional will act as an expert witness for you or will be in the role of gatekeeper. Since the screening professional’s hourly fees are usually lower than those of an expert witness, it is economical to use the screener to identify the cases without merit. The screening professional (doctor or nurse) should be experienced in recognizing the valid cases and not hesitant to identify the claim without merit. Although identification of the value of the damages in the claim is a vital first step, the screener cannot stop there. Recognition of the critical link between proximate cause and damages, knowledge of the applicable standard of care, and the ability to identify the plaintiff who lacks jury appeal are equally important.

Med League Support Services Inc. provides screening of medical and nursing malpractice cases and expert witnesses. Contact our office for more information.

1. Shannon, J. and Boxold, D., Medical Malpractice: Verdicts, Settlements and Statistical Analysis, LRP Publications, Horsham, PA, 2002.