One of the most common types of medical malpractice claims is for pain and suffering. Learn about pain and suffering damages and who’s liable in these cases.
Medical errors cause a surprisingly high number of deaths each year in the United States and an even greater number of permanent disabilities. According to a recent study by the patient safety experts at Johns Hopkins University, over 250,000 deaths are caused each year in the United States by medical error, making medical malpractice the third-leading cause of death in the country. Many patients seek pain and suffering compensation through the courts when they, or a loved one, has been harmed at the hands of medical professionals.
Types of Medical Malpractice
Medical malpractice covers a wide range of issues related to medical care delivered by any medical professional or paraprofessional. The provider doesn’t need to be a doctor or licensed to be liable for errors and omissions they make. Individuals and institutions can be defendant’s in medical malpractice lawsuits.
Here are some common types of medical malpractice:
- Inaccurate diagnosis
- Misinterpretation of lab results
- Performing the wrong surgery on the wrong patient
- Medication errors such as missed doses or overdosing
- Inadequate aftercare
- Performing unnecessary medical procedures
- Failure to conduct adequate testing
- Offering services beyond the scope of licensing and/or training
What Is Pain and Suffering?
In legal terms, pain and suffering is physical and/or emotional distress caused by the intentional or unintentional actions of a person, business or organization.
Pain and suffering claims aim to put a dollar figure on the damages inflicted on an individual by another person separate from damages that have a clear monetary value, such as the cost to repair a vehicle following a crash. Also known as general damages, these are damages that warrant compensation, although that compensation largely depends on how the victim is affected.
Pain and suffering in medical malpractice focuses on two aspects, physical pain and suffering and mental pain and suffering.
Physical Pain and Suffering
Physical pain and suffering refers to the physical injuries and pain caused by the actions of the defendant, as well as the projected pain and discomfort that the plaintiff is expected to experience as a result of their physical injuries. This can include:
- Amputations and/or loss of use of a limb
- Partial or complete blindness
- Brain damage
- Headaches, cognitive delays and memory loss
- Pain from the use of a prosthetic device or mobility aid that’s needed to manage the injuries
- Chronic and/or recurring joint, muscle and/or bone pain
- Loss of cardiovascular function
- Loss of blood flow
- Neuropathic pain
- Bowel and/or bladder incontinence resulting from the injury
Mental Pain and Suffering
Mental pain and suffering in medical malpractice claims covers the mental damage and emotional distress caused by the actions of the defendant. Some of the types of mental pain and suffering are:
- New or worsened anxiety
- Sleep disturbance
- Post-traumatic stress disorder
- Mood swings
- Inability to focus/loss of cognitive functioning
- Loss of interest in sexual activity
- Panic attacks
As with physical pain and suffering, mental pain and suffering claims attempt to address both the current status of the plaintiff and the issues they are likely to have in the future as a result of the medical malpractice.
For example, a patient who suffers brain damage due to a lack of oxygen during a surgical procedure may be unable to return to their job, causing a loss of current and future income. That same patient may also struggle with anger, memory loss and confusion, leading to difficulties with their personal and professional relationships. In this situation, the claimant might seek financial compensation to cover their lost income and money to compensate them for the emotional pain, suffering and trauma they’ve experienced.
What’s the Average Settlement in Medical Malpractice Pain and Suffering Claims?
The amount of money a plaintiff can seek from a medical malpractice pain and suffering claim depends on a number of factors:
- Whether or not the state where the claim is filed has caps on non-economic damages
- Whether the injury or injuries are considered to be permanent
- The level of physical and mental impairment caused by the injury
- The age of the plaintiff and how long the plaintiff is expected to live
- How the injuries have affected the plaintiff’s ability to return to their previous lifestyle
The success of a pain and suffering claim is also based on the credibility of the plaintiff, particularly when the claim involves compensation for emotional pain and distress because that can be difficult to quantify.
Medical malpractice pain and suffering claims tend to generate more compensation when the victim is a child or young person compared to cases involving an elderly patient or one who has a number of pre-existing medical conditions.
Many medical malpractice claims are settled through out-of-court mediation, and it’s common for these cases to be sealed under non-disclosure agreements that prevent the involved parties from discussing the damages and terms of the settlement.