Last updated on August 7th, 2023
Medical malpractice occurs when a hospital, doctor, or other health care professional, through a negligent act or omission, causes an injury to a patient. The negligence might be the result of an error in diagnosis, treatment, after-care, or health management.
Patients who suffer from damages in medical malpractice may recover, from loss of earnings to payment of medical bills to compensate for the loss of enjoyment of life. The three kinds of specific medical malpractice damages are known as General Damages, Special Damages, and Punitive Damages. If a patient’s death results from medical malpractice, the patient’s heirs can also typically recover damages under state Survival Statutes and Wrongful Death Statutes.
States vary widely in their treatment of damages in the medical malpractice arena, and nearly half have put limits or “damage caps” on what a plaintiff can recover. You can take a look at Ohio’s caps here or Indiana’s here.
A patient who suffers from medical malpractice may be entitled to three types of damages: General Damages, Special Damages, and Punitive Damages.
General Damages relate to the suffering of the patient and include such things as pain, mental anguish, disfigurement, and a loss of enjoyment of life. They can also include the suffering of other people related to the patient, such as a spouse or child who might claim loss of the benefits of a family relationship.
General Damages are considered “non-economic” because they are speculative. They also include loss of future earnings because this, too, is a speculative element. Every case is different and there are no specific rules about how the exact amount of damages is determined.
Special Damages are the quantifiable expenses caused by medical malpractice, including medical bills and lost wages. Although there is often some guesswork involved, particularly when it comes to future medical expenses, Special Damages are typically more exact than General Damages.
General Damages and Special Damages are considered to be “compensatory,” and are designed to make the patient whole. In some circumstances, however, the patient may be able to recover Punitive Damages. The rules on when a patient may get Punitive Damages vary from state to state, but the general requirement is that a defendant’s negligent conduct was highly reckless, or his misconduct was intentional or malicious.
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A jury or judge determines the amount of Punitive Damages, if any, but typically they cannot be more than several times the amount of General Damages and Special Damages combined.
Depending on the state, there may be a limitation on the maximum amount of total damages the patient can recover. Some states put a cap on all damages combined. Other states only limit General Damages.
Many states require that the damages assessed by the judge or jury be reduced by the amount the patient received from insurance and other sources.
Every state has a Survival Statute and a Wrongful Death Statute that allow heirs and family members to obtain damages in the event of medical malpractice that results in a patient’s death.
Survival Statutes compensate the decedent’s estate for damages that the decedent would have been entitled to from the time of the initial malpractice until the date of death. In some states, both damages for pain and suffering and economic losses are allowable. In others, only economic losses are compensable.
Wrongful Death Statutes are designed to compensate the patient’s family for their future monetary loss, both in terms of a projection of the patient’s future salary, as well as taking into account the patient’s financial habits.
The Civil Justice Resource Group, a coalition of legal scholars from law and graduate schools around the country that supports the civil legal justice system, estimates that up to 120,000 people die each year due to medical malpractice. The number of patients injured is many times higher. Yet only a very small percentage file medical malpractice cases.
While not every medical treatment has the desired outcome, healthcare professionals and physicians must provide their patients with a level of care that meets professional standards. If you or a loved one was injured as the result of substandard care at a hospital or medical facility, a medical malpractice lawyer can help you obtain the compensation you legally deserve. Contact us today for a free consultation.
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This page has been written, edited, and reviewed by a team of legal writers following our comprehensive editorial guidelines. This page was approved by Founding Partner, Doug Mann who has more than 20 years of legal experience as a practicing personal injury attorney.
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