Recoverable Damages In Medical Malpractice Cases
Your doctor made a mistake. You were injured. You now have to take time off work, pay unexpected medical costs, and hire someone to maintain your home and yard. As a result, you are teetering on the edge of financial ruin. Are you entitled to be reimbursed for medical expenses? Lost wages? Mental anguish?
The short answer is “yes.”
If you prove a breach of the standard of care and causation, you are entitled to damages. However, in Michigan, recovering damages in a medical malpractice action can be complicated.
Damages generally fall into two categories: economic and non-economic.
Economic damages are what we typically think of when someone suffers a loss or injury. These damages are straightforward and include the cost of medical care, wage loss, and expenses for household replacement services.
It is important to keep very good record of these expenses and be on the lookout for “hidden” damages, like reduced pension payouts. Make sure to keep your receipts for co-pays and other out-of-pocket medical expenses, receipts for housekeeping and yard work services, and track round-trip mileage to doctor’s appointments. Employment and medical billing records will typically be gathered by your attorney in order to provide the defendant, and ultimately, the jury, with a comprehensive damages package.
Non-economic damages are often coined “soft” damages and include pain and suffering, mental anguish, loss of social pleasures and disfigurement. These damages are not proven by receipts and bills. You must convince the jury that what you have endured as a result of the negligence and resulting injury affected your day-to-day life in such a way that monetary compensation is appropriate. Many times, testimony of family members, friends, and co-workers can be helpful in conveying your emotional trauma to the jury. In medical malpractice cases, no matter how much the jury awards in non-economic damages, the Court will reduce the award to comply with the “cap.” (See MCL 600.1483). The maximum you can receive in 2018 (it changes every year) is $455,000, or at most, $812,500 if you suffered paralysis, permanent brain damage, or loss of the ability to have children.
In addition to reduction of the non-economic damages award, there are several ways in which the amount you actually receive in a medical malpractice action may be affected. For example, if your medical expenses were paid by health insurance, you will be required to reimburse the insurance company. Sometimes, your attorney can negotiate a lower rate on your behalf. If you received payments for disability during your recovery, there could be a set off against the award or you may need to repay the disability benefits. Additionally, if the jury finds that you contributed in some way to your injury, after the verdict is rendered, the Court will reduce the amount by a sum equal to the percentage of fault assigned to you by the jury. (See MCL 600.6304 and 6306). If your percentage of fault is greater than 50%, you are not entitled to non-economic damages.
In the event a lawsuit is brought on behalf of the estate of an individual who died as a result of his or her doctor’s negligence, the spouse, children, descendants, parents, grandparents and siblings are entitled to damages.
These economic and non-economic damages are constrained by the Wrongful Death Act (MCL 600.2922) and include medical, hospital, funeral, and burial expenses, compensation for the conscious pain and suffering of the decedent that occurred between the time of injury and death, damages for loss of financial support and loss of society and companionship.
The Personal Representative of the Estate should gather and maintain the relevant bills, receipts, invoices and other documents related to the decedent’s medical treatment at issue and subsequent death. Non-economic damages will be awarded on the strength of the relationship between the decedent and his family members, proof of which can be demonstrated by home videos, photographs, and testimony of family members.
The takeaway: Damages are yours to prove. Documentary evidence and compelling testimony are the best way to recover monetary compensation for the damages you suffered and to make you whole again.
At Hoffer & Sheremet, our medical malpractice attorneys work with you to identify your damages and make sure you have all of the documentation necessary to support your damages claim. To learn more about how we analyze damages, fill out our Free Consultation Form, watch our video, call us at 616.278.0888 or email us.