What is “Pain and “Suffering” in a Medical Malpractice Case?
If you sue a doctor, other medical professional, or hospital for medical malpractice, you may receive two kinds of payments (called “damages”) to compensate you for the costs and losses you suffered as a result of the medical negligence.
Economic and Non-Economic Damages
One kind of compensation is for concrete expenses, such as medical expenses and lost income. You can show exact dollar amounts for these expenses and losses using receipts, bills, pay records, and other documents. These are called “economic damages” or “special damages.”
The second kind of compensation is for losses that you cannot calculate exactly because they are more subjective. These losses are called “non-economic damages” or “general damages.” A large part of non-economic damages is what the legal system calls “pain and suffering.”
Two Types of “Pain and Suffering”: Physical and Mental/Emotional Suffering
In a medical malpractice case, damages for pain and suffering caused by the medical malpractice may be divided into two parts — those relating to the physical suffering and those relating to the mental or emotional suffering.
Physical suffering includes physical pain or discomfort, including pain or discomfort that occurs right away because of the medical malpractice, as well as pain or discomfort that arises later, including pain or discomfort caused by any ongoing medical treatment that is necessary to treat the injury or harm.
Mental and emotional suffering covers a wide range of non-physical suffering. It includes emotional distress, such as anxiety, anger, humiliation, and embarrassment, as well as the results of the distress, such as an inability to sleep. It also includes losses such as a loss of the ability to enjoy life and a loss of companionship and affection, which in the context of family life is called “loss of consortium.” If the injury caused by the malpractice involves disfigurement or impairment, any accompanying emotional stress would also be a part of this category of damages.
Physical and mental/emotional suffering are often intertwined. Emotional distress can cause physical symptoms and vice-versa.
How Pain and Suffering Are Calculated in a Medical Malpractice Case
Pain and suffering are subjective. There is no formula where you can plug in a list of numbers and get an answer. For this reason, damages awarded for pain and suffering can vary dramatically from one person to the next even when their injuries and circumstances are similar.
When your lawyer negotiates with the doctor’s or hospital’s insurance company, your lawyer and the insurance company will typically consider how severe the harm was, what kind of medical treatment you received, how long it took you or will take you to recover, and whether you are likely to suffer ongoing harm.
If your case does not settle and goes to trial, pain and suffering will be decided by the jury. They are likely to take into account what your life was like before the incident of medical malpractice to see how different your life is now because of the harm that was done to you.
Because this whole process of calculating damages for pain and suffering is so subjective, it’s important that you have a skilled and experienced medical malpractice lawyer to advocate on your behalf and present the strongest possible case so that you can get everything that you deserve.
What You Can Do to Prove Your Pain and Suffering in a Medical Malpractice Case
Even though pain and suffering are not as specific as medical bills and lost income, you will still need evidence to prove the pain and suffering if you go to trial. The more you can document your pain and suffering in medical and personal records, the better your chances are of getting all the compensation the law allows.
If you are getting medical treatment for the harm or injury that was caused by the malpractice, be sure to tell your doctor of any pain and suffering you are experiencing so that your doctor will make a note of it in his or her medical records. These records can provide important evidence at trial. You should also keep your own notes and make a daily record of any pain or suffering you have, as well as noting any of your usual activities that you now find difficult or impossible to do because of your injury. If your injury is visible, you can take photographs of the changes for an ongoing visual record, and you can establish the date by turning on the timestamp function of your camera or phone.
In some cases, a lawyer may also want to call expert witnesses, such as doctors, psychologists, or therapists, to testify about your physical and/or mental and emotional suffering.
Contact an Experienced Medical Malpractice Lawyer
The lawyers who you choose to represent you in a medical malpractice case can make a big difference in how much money you may be awarded for pain and suffering. Because these types of damages are so subjective, your lawyer’s skill in negotiation and, if the case goes to trial, courtroom advocacy are even more important than they might be otherwise.
The attorneys at the Raynes & Lawn law firm are honored to have been awarded a Tier One ranking for their excellence in medical malpractice. The firm has also received many other honors, including being named to “best attorneys” lists both locally and nationally.
If you believe that you or a loved one were injured or harmed because of medical malpractice, we would be glad to talk with you. Call us at 1-800-535-1797 or contact us online to schedule a free no-obligation consultation.
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