What
Damages May I Recover in a Medical Malpractice
Case?
There are several types
of damages allowed to be recovered by
successful patients in a medical malpractice
case. These damages can be broken down
into two main categories: (i) General
damages, and (ii) Special damages.
General damages are those
damages which are non pecuniary or do
not represent out of pocket expenses.
Pain and suffering, mental anguish, disability,
disfigurement, scarring and loss of love
and affection represent the major areas
of general damages. Although Louisiana
law allows the recovery of these items
of damages, it places a ceiling or cap
on the damages of $500,000 in medical
malpractice cases.
This means that even if
the patient proves to a judge or jury
that he has endured pain and suffering
and mental anguish worth millions of dollars,
any award rendered by a judge or jury
must be reduced to $500,000 plus interest.
Special damages include
pecuniary or out of pocket losses like
past medical expenses, future medical
expenses, past lost wages, future lost
wages, and custodial care. With the exception
of past and future medical expenses, the
$500,000 cap also covers lost wages. That
means that if a patient will suffer millions
of dollars in mental anguish and millions
of dollars in actual past and future lost
wages, the most he can recover is $500,000
plus his medical expenses.
Obviously, if the past and
future wage claim is high, a patient could
get nothing for his pain and suffering
or vice versa if the pain and suffering
is high and no recovery is made for the
lost wages.
The Louisiana Medical Malpractice
Act handles the recovery of future medical
expenses differently that they are handled
in a normal personal injury case. In a
normal case, the plaintiff puts on evidence
of his expected future medical expenses
and the jury will make a lump sum award
for what they feel the plaintiff's future
medical expense will be. The plaintiff
then collects that lump sum (as well as
his other damages) from the defendant.
In medical malpractice cases,
the jury decides whether the patient is
in need of future medical expenses, but
those future medical expenses are paid
by the PCF as they are incurred, not in
a lump sum.
The obvious advantage of
payment in a lump sum is the ability to
invest the lump sum or create a medical
trust fund to make sure that good care
is provided to the patient for the rest
of his life. Moreover, if the plaintiff
dies after being awarded those monies
in a lump sum, his heirs will inherit
that money. If a patient dies after a
verdict in a medical malpractice case,
the PCF simply stops paying for the medical
care and the heirs do not inherit it.
