In a New York medical malpractice lawsuit, we know that certain damages can be quantified such as medical bills, lost wages, and lost earnings. These costs us a certain amount of money, and that can be easily determined. But what about the actual personal injuries—the pain and suffering—how is that calculated?
That is a much trickier assessment!
There is no bill or expense for pain and suffering. We do not have a set, going rate for each injury. We can be compensated for healing that area, but not for the actual pain it causes. So how does this actually work?
Well the greatest tool is known as the reasonable compensation statute. This law allows courts to look at what other juries have awarded for similar injuries, to similar victims, in similar circumstances. This means that a court will compare jury verdicts and your case, to see if you are worse or better than the victim in that case.
For instance, if a jury awarded $500,000 for a botched shoulder replacement surgery to a 40 year old, and another jury awarded $600,000 to a 20 year old for the same botched shoulder replacement, if you client is 30 years old he or she may likely get $550,000 for the same botched shoulder surgery. This is because life-expectancy is a common factor in assessing a verdict.
This is an oversimplified example of how the process works as there are many other factors to consider such as the severity of the injury, the pain the victim is in, the cause of the error, and other issues, this is basically how it works.
If there are no similar injuries, the court will also use other verdicts to estimate. For instance, if there are broken toe cases awarding $10,000 and broken ankle cases awarding $100,000, and the victim has a broken instep or metatarsals—which are between the toes and ankle—the victim can except to receive between $10,000 and $100,000 in reasonable compensation.
Thus, valuing pain and suffering does take into consideration a lot of the objective findings and the subjective complaints of the victim. But the reasonable compensation also looks at what other victims in similar circumstances have received to ensure fairness.
But what do you think? I would love to hear from you! Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at [email protected]practicelaw.com. You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.