Like many people, you probably have heard the term “pain and suffering” and know that courts frequently award this type of compensation in personal injury and other kinds of lawsuits. However, you may wonder how this compensation relates to medical malpractice claims.
In a medical malpractice (or medical negligence) case, pain and suffering refer to the physical and mental suffering a victim experiences due to a doctor’s negligence. It is a non-economic form of compensation, unlike economic damages such as medical bills or lost income. While pain and suffering can form a large portion of your settlement or jury award, it’s important to understand how they are proven and what it means for your medical malpractice case.
Your Malpractice Claim Can Include Two Types of Pain and Suffering
Whether you settle out of court or receive a jury award, the compensation you receive will cover your actual costs (economic damages) and your subjective costs (non-economic damages). Proving economic losses involves providing receipts, medical records, and other documents. However, showing proof of pain and suffering is more complicated.
The goal of a lawsuit is to make the plaintiff “whole,” which means returning them as closely as possible to their state prior to the malpractice incident. With medical issues, this is not always possible, especially if you suffer significant injury or sickness. However, that is why your settlement is provided monetarily. If you are now facing a life with a debilitating disability, you are entitled to request financial support to help you adjust comfortably.
You can ask for financial relief for two kinds of non-economic losses: physical and emotional. Each is calculated slightly differently, but both depend on keeping detailed records of what you experience in relation to the injury or illness you suffered from medical malpractice.
Your physical suffering includes physical pain or discomfort. This can include immediate pain after the medically negligent action, pain from surgeries or treatments, and the suffering you experience that arises later. Your pain may last for weeks, months, or years. It could be permanent, leaving you with chronic pain for the rest of your life. You may be unable to maintain your health and fitness due to reduced mobility, creating additional health problems.
Common injuries that can qualify as causes for pain and suffering include:
- Aftereffects of transplant operations
- Brain injuries
- Complications from inaccurate medications or dosing
- Damage to nerves anywhere in the body
- Damage to your back, neck, spine, and spinal cord
- Loss of limb or amputation
- Organ damage
Emotional or Mental Suffering
Mental and emotional suffering includes emotional distress, such as anxiety, anger, and humiliation. It also consists of the loss of the ability to enjoy life and a loss of companionship and affection, also known as loss of consortium. However, emotional stress can cause physical symptoms and vice-versa.
Emotional distress occurs when the actions of a medical professional result in the victim suffering mental harm. In some cases, it can cause permanent mental and psychological distress. Mental pain and suffering damages include compensation for:
- Cognitive changes
- Disfigurement from scars or amputation
- Insomnia and other sleep disturbances
- Isolation from society
- Issues with balance and coordination
- Loss of professional and personal reputations
- Loss of quality of life
- Mental health therapy costs
- Shock, fear, embarrassment, and inconvenience
- Post-traumatic stress disorder (PTSD)
How Pain and Suffering Is Calculated for Compensation
Before any of your damages are awarded, you must prove negligence by establishing the following conditions in a medical malpractice lawsuit:
- You and the healthcare worker had a patient-doctor (or caregiver) relationship.
- Your medical provider owed you a duty of care according to the accepted standard for your condition in your state.
- The healthcare worker failed to uphold that duty of care.
- You experienced injury, illness, or death as a result of the medical provider’s failure.
- You have incurred expenses as a result of your injury or illness (your family takes this burden on in the event of your death).
Once your attorney has built your case, they will present documentation of your expenses, including pain and suffering. While it is not possible to mathematically calculate these intangible expenses, your lawyer can take several factors into consideration.
A skilled medical malpractice attorney will work with the insurance company to consider factors such as:
- How severe your damages are
- What kind of medical treatment you received
- What your recovery time has been or is projected to be
- Whether you are likely to suffer continuing harm
In general, the court will consider how the injury or illness will impact the victim’s life. Because this process is so subjective, damages from pain and suffering can vary from case to case. Insurance companies often use a “multiplier” to assess the value of various damages, and your attorney may implement a similar strategy when requesting compensation.
How Juries Determine Pain and Suffering
While you are able to ask for whatever amount you wish, a skilled and experienced malpractice attorney will help you understand what is realistic. Insurance companies use multipliers, but juries do not. There are important factors your lawyer must take into account when deciding a fair and appropriate amount to request for pain and suffering.
Does the Jury Understand the Case?
A jury is comprised of individuals who may or may not have a medical background. They likely will not grasp the complexities of treatment regimens and recommended procedures. It will be critical for your attorney to use expert witnesses who can explain your case in terms the jurors can understand.
If your lawyer and witnesses can present a compelling narrative of how you were hurt and the substantial impact you have experienced as a result, you have a greater chance of swaying the jury in your favor.
Are Your Witnesses Credible and Consistent?
Along with the ability to explain your arguments in easy-to-follow statements, your witnesses must be credible and consistent. They should have strong backgrounds and experience in the field in question. They should not confuse the jurors but be able to demonstrate their compassion, objectivity, and knowledge about the standard of care.
Jurors will be more inclined to believe a witness when the person is likable and consistent in their testimony. The same is true of others who present statements in your favor, and a qualified attorney will guide each witness on how to do this to your advantage.
Have You Proven The Impact of Your Losses?
Statements of how your life has changed can influence a jury to award your maximum compensation. These include whether you have lost a limb or organ or if you have experienced scarring, disfigurement, disability, paralysis, and an inability to care for yourself. Facial scars can lead to social isolation, depression, and other emotional distress, resulting in a potentially higher award.
Your attorney should demonstrate through testimony and your personal pain journal just how detrimental the physician’s malpractice has been to your life. If you were on the path toward being a professional athlete but are left with cognitive or other damage that keeps you homebound, you deserve compensation for the drastic changes in life plans you now face.
For children who are harmed, the jury award must take into account the costs of care and effects on a young life who would have had an otherwise bright future. The parents of severely injured children must be able to provide care after their deaths so their offspring is able to survive.
Proving Pain and Suffering Depends on Powerful Evidence
For economic damage claims, you can rely on receipts and bills to support your demands. For pain and suffering, you will still need evidence to prove your injuries if you go to trial. Instead of calculating your losses quantitatively, you can use items such as:
- Medical records showing a decrease in lung capacity, changes in blood pressure, or other effects
- Notes from mental health professionals
- Photographs of your wounds or injuries
- Photos and video of you prior to the malpractice injury
- Testimony from people who knew you before the malpractice event
- Video of your difficulty moving, breathing, or other activities
- Written or verbal testimony from an expert in a relevant field
- Your personal pain journal
If you are getting medical treatment for your injuries, be sure to tell your doctor if you are experiencing any pain so they can note it in your medical records. These records can provide substantial evidence at trial.
Your attorney can help you examine your documentation and determine any potential damages you may have overlooked. Reach out to us today to learn more about what losses you may be eligible for and how to file a medical malpractice case.
Contact the Snyder Law Group Today
The Snyder Law Group, LLC, proudly represents clients throughout Maryland and Washington, D.C. Our experienced Baltimore attorneys understand the frustration that comes with an insurance company, medical professional, or another party who must be held accountable for their wrongful actions or negligence.
When you are facing a difficult medical malpractice case, trust in our talented and experienced lawyers who are ready to work for you. We specialize in managing personal injury claims for medical malpractice, as well as claims for injuries resulting from serious car and truck accidents. Our previous clients can speak for us, as we have secured hundreds of millions in verdicts and settlements for them.