There are four requirements for a medical malpractice action: duty, departure, proximate cause and damages.

The first arises from the doctor-patient relationship and the second and third address how a failure to adhere to the Standard of Care caused the harm that the plaintiff suffered. These are the elements that most doctors find understandable precisely because they are medical in nature. Damages, however, are often confusing so let’s take a look at that aspect of a case more closely.

  1. Types of damages

(i) General damages

These are the damages that relate to suffering.  They refer to matters such as a pain, mental anguish, disfigurement, aggravation of a pre-existing condition and a loss of enjoyment of life.  They can also include a claim for someone else who is also suffering, such as a loss of consortium claim by a spouse or a claim by minor children for losing the guidance of their parent.

Although general damages are generally referred to as “non-economic” they can also include the financial element of lack of future earning capacity.  Because this has a speculative element, since it extrapolates from the past to the future, it is classed with general damages rather than with the specifically quantifiable special damages that we will look at next.

At trial, the plaintiff will proffer evidence supporting their general damages claims that will include both personal and family testimony and the testimony of experts such as physicians, actuaries and medical economists. The defense will then attempt to rebut those presentations, both by cross-examination and by proffering their own experts.

As an example, consider a claim for permanent impairment of an essential function, the ability to walk.  The plaintiff would testify as to his own limitations and family and friends who have to assist him would do so as well. A “day in the life” video might also be submitted to demonstrate how the loss of the ability to walk affects the plaintiff on a daily basis.  The defense will present testimony or video evidence that the plaintiff is not actually as impaired as is claimed. A physician would have to testify as to the permanence of the loss of normal ambulation.  The defense would certainly cross-examine that expert and may also introduce one of its own to testify that the problem is not permanent.  Both sides would then proffer experts as to the life expectancy of the plaintiff – that is to say, how long the period of limitation is expected to be. In making that case, actuarial tables would be admissible evidence but would not be considered conclusive and the jury could also consider matters such as the plaintiff’s personal health and habits.

Before leaving this topic, a word on loss of consortium is in order. This is often thought to mean just the loss of the ability to have sexual intercourse but that could not be further from the truth. Consortium actually refers to, in the words of one court, “the constellation of companionship, dependence, reliance, affection, sharing and aid that are legally recognizable, protected rights arising out of the civil contract of marriage”.  Therefore, for example, if a man suffers a stroke as a result of malpractice and becomes aphasic and emotionally labile with bouts of anger – that is to say, he is no longer a supportive husband who can converse freely with his wife – his wife would have a claim for loss of consortium even if her husband is still fully sexually capable.

(ii) Special damages

These are the strictly quantifiable losses, including such matters as past and future medical bills and lost wages.

(iii) Punitive damages

General and special damages are called “compensatory damages” because they are designed to “make the plaintiff whole” – to compensate them for the actual extent of the harm that they suffered. Punitive damages, however, are unrelated to that calculus.  They are what they sound like: punishment. They are damages assessed against a defendant whose negligent conduct was egregious or highly reckless, or whose misconduct was actually malicious or intentional.

The actual amount of punitive damages that can be assessed is discretionary with the jury but it is subject to the judge’s approval and most judges will not permit more than ten times the amount of compensatory damages as a maximum punitive assessment.

A bifurcated trial (see below) may be also be required if punitive damages are to be assessed.

Some jurisdictions do not permit punitive damages to be assessed in medical malpractice actions.  Juries may then try to make up for that by awarding excessive general damages but that usually does not survive appeal and may even be reduced immediately by the trial judge (see below).  However, as a rule of thumb, when you see an astronomical verdict in a case with discrete compensatory damages you are probably seeing the work of an angry jury that wants to teach the defendant a lesson.

  1. Adjudicating damages

(i) Wrongful Death statutes and Survival statutes

Wrongful death statutes are designed to compensate the decedent’s family (usually limited to the spouse and dependent children) for future losses. The monetary aspect of that is not just a flat salary calculation.  It also takes spending, saving and work habits into account. It obviously also takes life expectancy had the fatal injury not occurred into account.  It is also adjusted for expected inflation. Funeral expenses are also included.

Survival statutes allow the decedent’s estate to recover damages that the decedent would have been entitled to had he or she lived.  These are the damages that occurred from the time of the initial malpractice until the date of death. Some states limit this to economic losses only but most permit the recovery of damages for suffering that the decedent endured.

Therefore, if Mr. A, who had been working steadily at a good job, suffered an injury due to malpractice on May 1 and lingered, suffering, in a poor condition until September 1 and then died, his estate would bring two claims:

  • A wrongful death claim for the loss of the support that he would have provided to Mrs. A and their three children in the future had he lived, as well as the cost of his funeral, the loss of consortium for Mrs. A and the loss of guidance for the children
  • A claim under the survival statute for the conscious pain and suffering, mental anguish and fear of death that Mr. A experienced for four months until he died, as well as any expenses that he incurred during this time related to the impact of the malpractice on his health.

Although the actions are generally brought at the same time, they actually have different Statutes of Limitation and those start to run at different times – that for the Survival statute begins on the date that the claim arose to the decedent, which is usually the date of the malpractice, while that for Wrongful Death begins on the date of death.

(ii) The Collateral Source Rule

Collateral sources are payments or coverage that a party receives from outside (i.e.; collateral to) the case.  In a malpractice case this is an insurance payment, or the governmental equivalent, for the plaintiff, and the malpractice coverage for the defendant.

The Collateral Source Rule is a rule of evidence that prevents either side from introducing the fact that the other has access to such sources of compensation. As to the plaintiff, it is based on the idea that someone who acts wrongfully and causes harm thereby should not get to benefit from the victim having coverage. As to the defendant, it is based on the equivalent idea that responsible conduct in maintaining malpractice insurance should not be held against them. It exists to advance the public policy of being insured and it will be enforced strictly by a court so that a plaintiff saying “Hey, it’s not coming out of his pocket. His insurance will cover this.”  or a defendant doctor saying “What’s the problem? InsCo already paid out on this.” is a fast road to a mistrial.

The CSR takes the issue of any outside payors out of the matter entirely so that the jury therefore considers only what is before them: whether the events of the case prove liability and what are the damages that can be assessed.

It is also important to note that using the CSR does not permit “double-dipping” by the plaintiff because the covering payors (both private and governmental) have liens against any recovery such that the plaintiff actually has to pay them off right off the top, negating any possibility of a windfall.

 (iii) Bifurcated trials

Bifurcation refers to separating the trial into two phases.  In the first phase, the jury considers the issue of liability.  If liability is found, the jury then moves on to determine damages in the second phase. This clearly makes sense because the time/expense-consuming damages aspect need never be reached if liability is not initially found.

Bifurcation has other benefits as well, one more favorable to the plaintiff and one more favorable to the defense:

  • If liability is found, bifurcation allows a “time out” to permit the negotiation of a settlement that will then not be subject to appeals, as a verdict can be.  This is advantageous to the plaintiff.
  • In a bifurcated case the jury is less likely to be swayed in its liability determination by the gravity of the plaintiff’s injuries.  This is advantageous to the defendant.

Narrowing of the issues that a jury is considering at any given point is also valuable in helping lay people parse out the facts in a complex medical case, making a fair verdict more likely.

Therefore, although no state specifically requires a bifurcated trial just because a case is a medical malpractice action, they are favored in that setting. Judges may do the bifurcation on their own or upon the request of either the plaintiff or the defense. If, on the other hand, the plaintiff maintains that the extent of the damage is inextricable from the determination of liability, they would have the burden of proof of that in opposing bifurcation. Bifurcation may, however, be required in some states if punitive damages are being considered in a given case. In those situations the phases are different, however – instead of liability followed by damages it will be liability and compensatory damages followed by punitive damages.

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(iv) The judge’s role

The judge will have his or her major impact on the damages element of the case just before the jury deliberates and just after the jury reaches a verdict.

After both sides have concluded their presentations to the jury the judge charges the jury on the elements of the case, including damages, basically explaining the law to them and how they may permissibly slot the facts that they have heard into it. Generally, the judge will use both template jury instructions and proposed instructions submitted by both sides in formulating the jury charge. If the judge gives an inappropriate instruction, either party may appeal.

In some jurisdictions, the judge also has the power to alter an award directly after the jury has reached a verdict, usually on motion from one side but possibly sua sponte (on his or her own initiative).  This can occur in two ways:

  • Additur is the adding of additional damages. It is most likely in cases where the judge deems punitive damages to be appropriate, but it can also be on motion from the plaintiff if the jury verdict is substantially lower than proven damages. If there has been an additur, the defense may accept it or may appeal.
  • Remittitur is the lowering of the damages awarded by the jury. It is most likely in cases in which the amount awarded significantly exceeds the amount demanded. The angry jury trying to make up for an inability to award punitive damages would be an example of such. If there has been a remittitur, the plaintiff may accept it or may appeal.
  1. Apportioning damages

(i) Contributory and comparative negligence

These refer to the plaintiff’s contribution to their own damages.

Contributory negligence is an archaic common law defense.  It means that if the plaintiff is at all at fault  – no matter how minimally – he or she cannot recover for injuries brought about by someone else’s actions. An example is a case in North Carolina in which an intoxicated driver who drove up onto the sidewalk and hit a child standing 3 feet from the curb was permitted to plead contributory negligence on the part of the victim.

The manifest unfairness of contributory negligence, as well as the practical fact that injured people will often have to turn to taxpayer-funded support if they cannot be compensated by the person who caused the majority of the harm, has resulted in its elimination in most states.  Currently, it is retained in only four states and in Washington, D.C.

Comparative negligence, by contrast, does what its name implies: it assesses comparative fault.

In a pure comparative negligence jurisdictions there is no limit on the degree of fault that may be assessed to a plaintiff while still allowing them to recover.  The recovery is, however, reduced by the percentage of their fault, as determined by the jury.  Therefore, in the most extreme situation, a plaintiff who is 99% at fault could still go forward in a case but would only collect 1% of any verdict at the end of the case. This is the law in 13 states.

The remaining 33 states modify comparative negligence, using either the 50% Rule or the 51% Rule. In those states, if the plaintiff’s fault is determined to reach either cut-off level (i.e.; to be greater than 49% or 50%, respectively) then he or she cannot recover any damages. This is, of course, a very significant degree of culpability on the part of the plaintiff and so is distinct from contributory negligence in which even 1% fault on the plaintiff’s part would bar any recovery.

It is important to note that neither contributory nor comparative negligence prohibit bringing a claim.  They are raised by the defense at trial and any eventual bars to recovery are based on the assessments made at the end of the trial by the jury.

In making that decision, the jury will use the standard of reasonability under the circumstances when it evaluates the plaintiff’s conduct. As an example, consider cases about a failure to diagnose breast cancer in a timely manner:

  • A plaintiff who failed to return for a recommended short term follow-up mammogram even though she could easily have done so and who only returned after she felt a lump two years later would be deemed to have not acted reasonably.  She would therefore bear a significant component of comparative fault.
  • A plaintiff whose breast mass was incorrectly diagnosed as a benign cyst and who then did not follow-up when it initially increased in size and only returned a year later when it was considerably larger would not be deemed to have been comparatively negligent because she was able to initially reasonably rely on the diagnosis that had been given to her of a benign pathology that could increase in size.

(ii) Plaintiff’s duty of mitigation

A plaintiff may seek compensation for reasonable and necessary medical, nursing and rehabilitative care and financial damages resulting from the malpractice. The key term there, however, is “reasonable and necessary”.  This places a duty on the plaintiff to limit their own damages.  It is part of the requirement to “come into equity with clean hands”.

The plaintiff must seek care for the problem as soon as he or she becomes aware of it and must follow prudent medical advice. They must also make any reasonable life alterations to minimize the economic effects of the injury. Evidence that the plaintiff failed to mitigate their damages can be offered at trial as a set-off against any recovery.

A court will look at whether the plaintiff acted reasonably under the circumstances.  This includes due diligence in selecting the proper person to deal with the injury, submitting to treatment  for the injury and undertaking lifestyle changes to lessen the impact of the injury that can be done without serious disruption. The plaintiff is not, however, required to increase the problems the malpractice-related harm has caused them by undergoing dangerous treatments or by totally upending their own life, such as moving to a distant state or accepting a huge cut in salary as part of a job change.

In other words, the plaintiff cannot just start a damage clock running and then sit back and watch it tick and charge everything to the defendant, but is also not required to further harm themselves to diminish the burden that the defendant may face.

Balancing the issues often comes into play when the results of the original injury could be lessened by surgery but the plaintiff refuses. In that setting a court will consider the extensiveness and the riskiness of the procedure (including anesthesia risks) and the history of success that it actually has in correcting the injury. The standard will be if the refusal on the part of the plaintiff is reasonable in a risk versus benefit calculation.

With increased numbers of mid-levels practicing independently and the prevalence of alternative therapies, courts now also have to consider whether not consulting an actual physician or not seeking standard medical care can act as damage mitigation. Again, reasonability will be the criterion and matters such as what the practitioner’s qualifications were and whether the treatment initially appeared to have the desired effect even if it later turned out to be valueless will be looked at.

(iii) Joint and several liability

Joint and several liability, a common form of liability apportionment in medical malpractice actions, is a combination of several liability, in which each defendant is responsible only for their own portion of the damages, and joint liability, in which any party can be liable for the total sum due to the plaintiff.

The principle behind this is that the person who was harmed should not have to chase defendants for compensation or get less-than-full compensation if one defendant is unable to pay.  It was considered more fair that those who caused the harm should have to settle the matter among themselves (i.e.; one defendant pays the plaintiff but can then seek reimbursement from the others for their proportionate share).

Practically speaking, it is, of course, how “deep pockets’ can be reached. This has caused concerns to facilities that can be held vicariously liable for the negligence of practitioners.

Some states have modified the rule such that a party less than 50% liable for the total damages cannot be held responsible for more than their personal share of general damages such as pain and suffering. The economic losses covered under special damages are still handled by joint and several liability in that setting. This generally permits facilities to remain liable as to damages while shielding individuals who played only a minor active role in the events from having to face shouldering large costs. It also makes sure that defined economic damages can never be left uncovered.

Other states have simply reverted to pure several liability. This is primarily to the advantage of facilities and the insurers that cover them, since they will be exempted from significant contribution to the total payment, with the majority now being borne by the defendant physician(s).


Dr. Medlaw is a physician and  medical malpractice attorney. This article originally appeared on SERMO, which retains all rights to it.