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A Lawyer’s Guide to Medical Malpractice Damages

Filed Under: , Articles, Best Practices
June 30, 2024 by Elizabeth Bulat

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Damages in medical malpractice cases

To properly establish the elements of a medical malpractice case, a plaintiff must show: “(1) a standard of care recognized by a medical community as applied to a defendant’s conduct; (2) that the defendant departs from that standard; (3) that the defendant’s departure is a direct cause of the plaintiff’s injuries; and (4) damages” (see Davidson v. N. Mem. Health Care, 2015 Minn. App. Unpub. LEXIS 25, *1). In a medical malpractice lawsuit, a plaintiff will seek damages to compensate for their pain, suffering, and loss. An electronic medical record (EMR) will aid the accurate calculation of damages; therefore, it is important to obtain a complete version of it. Further, each jurisdiction’s statutory and case law will dictate the amount, type, and distributive manner of the damages awarded to a prevailing plaintiff in a medical malpractice suit.

Compensatory damages

Compensatory damages are awarded to return the plaintiff to their pre-injury condition. These damages may include past and future: (1) medical bills; (2) loss of earnings or earning potential; and (3) physical and emotional pain and suffering. Compensatory damages are categorized as economic and non-economic damages.

Economic damages

Economic damages, or special damages, reimburse a patient for harm resulting from medical malpractice, including “the loss of earnings or other benefits related to employment, medical expense loss, replacement services loss, loss due to death, burial costs, and loss of business or employment opportunities) to the extent recovery for such loss is allowed under applicable State law” (see 42 U.S. Code § 14505(1)). Since an EMR can include a patient’s billing and insurance information, it may serve the court’s calculation of some economic damages.

In Rodriguez v. McDonnell Douglas Corp., 87 Cal. App. 3d 626, the court presents a rule to determine damages for lost wages. “Loss of earning power is an element of general damages that can be inferred from the nature of the injury without proof of actual earnings or income either before or after the injury. This test is not what [the] plaintiff would have earned, but what he could have earned” (Id. at 634). Therefore, if malpractice impacts the patient’s income, the damage awarded to them will be in consideration of the surrounding circumstances. An EMR may describe the patient’s physical and mental abilities that suggest what the patient is capable of at work.

Non-economic damages

Non-economic damages are awarded to compensate “for physical and emotional pain, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium (other than loss of domestic service), hedonic damages, injury to reputation and all other nonpecuniary losses of any kind or nature” (see 42 U.S. Code § 14505(3)). Pain and suffering are often results of medical malpractice; however, they are subjective and difficult to determine. To help a court quantify these otherwise variable non-economic damages, an EMR will reveal details regarding the treatment and status of the patient’s condition.

Manner of damages awarded

Compensatory damages are awarded to return a patient to their state before suffering harm from medical malpractice; therefore, damages are awarded in a manner to prevent their overcompensation. To prevent a plaintiff from investing money awarded in a lawsuit and profiting from their damage award, plaintiffs are often paid a lump sum and then periodic payments. These structured settlements may be adopted in a medical malpractice case where a significant sum of damages are awarded.

Punitive damages

Punitive damages are awarded to deter a defendant’s misconduct if it meets a heightened fault standard. The heightened fault standard for punitive damages varies depending on the statutory and case law in a given jurisdiction. In McGee v. Bruce Hosp. Sys., 321 S.C. 340, 342, the court establishes that in South Carolina, “in order for a plaintiff in a medical malpractice action to recover punitive damages, there must be evidence that the doctor’s conduct was wilful, wanton, or in reckless disregard of the plaintiffs’ rights. A conscious failure to exercise due care constitutes willfulness.” An EMR may include notes from doctors that reveal potential purpose or recklessness. In this case, the court will determine if the defendant’s conduct meets the jurisdiction’s respective standard to award punitive damages.

New York has a similar standard established by a statute, PHL 2801[d][2], that enables punitive damages to be awarded in medical malpractice cases. However, medical malpractice cases rarely award punitive damages because doctors are usually not intending to inflict harm on their patients (see Williams v. Ruby Weston Manor, 2006 N.Y. Misc. LEXIS 9396, *17). Therefore, in medical malpractice where punitive damages are awarded, it is likely due to the recklessness of the defendant.

Damage ratios and caps

Punitive damages awards are limited in some situations. 35 states have damage caps for medical malpractice lawsuits. In Tam v. Eighth Judicial Dist. Court, 131 Nev. 792, 794, the court verified a state law that imposed damage caps and applied it to medical malpractice cases. The court reasoned that “Nev. Rev. Stat. § 41A.035 (2004) does not violate equal protection because the imposition of an aggregate cap on noneconomic damages in medical malpractice actions is rationally related to the legitimate governmental interests of ensuring that adequate and affordable health care is available to Nevada’s citizens.”

Other states, including New York, do not impose a damage cap for medical malpractice suits. The National Library of Medicine states that “some state courts have based decisions declaring damages caps legislation unconstitutional on the lack of evidence of their effectiveness, thereby ignoring the findings of conflicting research studies or discounting their relevance.” The National Library of Medicine urges legislators to consider whether damage caps “benefit consumers enough to justify limiting tort recoveries for those most seriously injured by malpractice.”


Truly, damages awarded to patients in medical malpractice cases are determined by a number of factors that an EMR can provide insight to. Therefore, requesting and obtaining a complete EMR is crucial for damage calculation. Given the variability of these factors, the sum of compensatory and punitive damages awarded may be inconsistent from jurisdiction to jurisdiction. Of course, given the nature of medical malpractice claims, financial compensation for a tragic loss may never be sufficient. However, damage calculation methods are duly designed to provide the plaintiff with restoration.

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