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Medical Malpractice Law

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What Damages Can Be Recovered For Medical Malpractice?

As a victim of medical malpractice, you can sue for your injuries and all of the direct consequences of those injuries. You can recover your actual economic losses such as the costs of reasonable and necessary medical care, rehabilitative services, costs of domestic services, and loss of earnings. The law allows compensation for future medical and care expenses that the claimant can prove will be reasonably necessary to treat the injury caused by the malpractice. The claim may include income the claimant can prove will probably be lost in the future because of the injuries. Loss of earning capacity is also allowed when the patient proves he or she is less able to earn a living as a result of the injuries caused by the malpractice.

You are also entitled to non­economic damages for physical pain and suffering, mental and emotional suffering, physical impairment, inconvenience, disfigurement, loss of enjoyment of life, loss of consortium (disruption of your personal relationship with your spouse), etc. There is no definite standard of calculating reasonable compensation for these types of damages other than being just and reasonable in light of the evidence.

In certain instances, damages may be awarded to families of injured claimants for loss of care, companionship, love and affection. Family members can be compensated for the wrongful death of a loved one. These damages may include medical and burial expenses, loss of income that would have supported the family members, emotional suffering, and loss of the pleasures of the family relationship.

Before a person may recover punitive damages in any civil action, that person must establish, by clear and convincing evidence, all of the facts that are relied upon by that person to support the recovery of punitive damages. A punitive damage award may not be more than the greater of three times the amount of compensatory damages awarded or $50,000. In most cases, the claimant only receives 25% of the punitive damage award. The remainder is deposited into the violent crime victims compensation fund.

For claims brought pursuant to the Medical Malpractice Act, there is a limit on the amount of damages that may be awarded. For claims accruing on or after July 1, 1999, the limit for each qualified provider is $250,000, and the total cap on damages against all qualified providers and the Patient Compensation Fund is $1,250,000. The recoverable award for malpractice that occurred before July 1, 1999 would be $100,000 for each qualified provider and $750,000 against all qualified providers and the Fund. If a qualified provider is found liable solely due to the negligence of an agent or employee who is also a qualified provider, its liability for itself and the agent or employee is limited to one damage cap amount.

The maximum combined liability of all governmental entities and all public employees acting within the scope of their employment for an injury or death arising out of a single occurrence is $300,000 per person and $5 million for all persons.

Any settlement will be reduced if there appears to be a good chance that the claim will not be successful. If you were partially at fault for your injuries, the amount of the damages will be reduced proportionately. Benefits received from collateral sources may be used to reduce your recoverable economic damages. Other factors that may reduce the damages include past medical history, pre­existing injuries, and prior claims history.

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