Medical malpractice civil litigation is an action in negligence against a medical professional. The attorney for the patient will have to prove by expert testimony that the medical professional owed a duty to the injured patient; breach of that duty; causation; and damages.
Expert medical malpractice attorneys know that the words used above are how courts and attorneys talk about malpractice claims. In the simplest terms, medical negligence means that you have been wronged.
The doctor who wronged you shouldn’t have wronged you. What happened to you wouldn’t have happened had the doctor followed the proper standard of care. The wrongdoing has caused you injury. And now you suffer from damages.
Once you have suffered actual damages, you are entitled to seek compensation by way of civil litigation. You sue to receive money for the expenses you have incurred, the wages you have lost, the pain under which you suffer, and other common damages.
The damages to which we speak above typically fall under the umbrella of compensatory damages. These damages are generally very specific. The particular loss caused by the doctor’s breach of care is pleaded and proved at trial. Often times these types of losses are easy to identify. For example, the patient lost two months worth of wages due to the doctor’s negligence; those wages can be easily calculated.
On the other hand, some compensatory damages are difficult to calculate. Future earnings may be hard to determine, especially for those employed in volatile fields, and when dealing with workers who work on commission, such as realtors. Lost earning potential, pain, suffering, the value of a lost sight, hearing and other bodily functions are other injuries for which compensation is not easily calculated.
You are also entitled to punitive damages, but in very limited situations. The general way courts determine if punitive damages are due to a party is by determining if the defendant’s actions were willful, wanton, and/or reckless. Another phrase used by courts is, “outrageous and beyond the bounds of decency”. The point of awarding such damages is to punish the defendant as a means to deter future similar conduct.
By way of example, consider a case titled Rose v. Conte, eventually brought to finality by the New York Appellate Division. In Rose, the patient went to see a doctor with complaints of abdominal pain. The doctor did not order a CT scan or gastrointestinal work-up, a deviation of the proper standard of care. As a result, the tumor inside the patient’s abdomen was not detected. Just one year later, the tumor had grown and spread to other organs. The patient eventually died from her illness.
The trial court awarded the plaintiff $800,000 in damages; $325,000 for the patient’s pain and suffering and $475,000 in economic loss suffered by the patient’s family.
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