Damages in Medical Malpractice Actions

This article is designed to acquaint the practitioner with those damages which may be awarded by a court or through settlement in personal injury actions, including those for medical malpractice. It commences with the types of damages that are allowable and continues with an analysis of those circumstances under which such awards may be made.

To start with, damages are generally divided into two categories, compensatory and punitive. Compensatory damages, as the names implies, are those designed to compensate the injured party for his injuries. This is done by placing him as best as possible in the same position as he was prior to the commission of the negligent act. Obviously, it is not possible to accomplish that literally. As a result, the law allows him to be awarded money for those injuries or damages which are the natural and proximate consequence of the defendant's negligence. In Florida one might expect to see the following elements included in a personal injury action: bodily injury, pain and suffering, disability, disfigurement, mental anguish, loss of the capacity for the enjoyment of life, aggravation or activation of a pre-existing disease or defect, value of medical services, value of other services, loss of income, loss of the capacity to earn, loss of a spouse's services, comfort, society or attentions, and loss of a childs services and earnings, up to the age of majority.

Additionally, in those actions that have resulted in a death, the survivors of a decedent may be awarded compensation. Survivors are defined as the spouse, minor children, parents, anyone partly or wholly dependent upon the decedent for support or services and any blood relative or adopted brother or sister. They also include any illegitimate children of the mother, but not the illegitimate children of the father, unless there has been a recognition of the responsibility for the child’s support. In this circumstance, minor children are defined to be those children under the age of 25 years of age. Damages which are allowed to these individuals may include the following: support and services from the date of injury to death; future loss of support and services from the date of death; a surviving spouse's loss of companionship and protection, along with mental pain and suffering; a minor child's loss of parental companionship, instruction and guidance along with mental pain and suffering; mental pain and suffering of a parent of a deceased minor child; medical or funeral expenses awarded to the estate or whichever survivor has paid them; loss of earnings and prospective net accumulations of the individual.

In addition to compensatory damages, under certain circumstances, punitive damages may be awarded. These are damages which are awarded by a jury in addition to compensatory damages. They are only appropriate in those circumstances where the acts of the negligent party go beyond simple negligence to the point where the act can be considered wanton, reckless, malicious or oppressive in nature. The purpose of these damages is both to punish the wrong-doer and deter others from committing similar acts. The amount of such awards is not limited by the amount necessary to compensate the plaintiff. Rather because it is designed to punish and deter others, it is generally determined by those parameters. Fortunately, in Florida under the Tort Reform Act of 1986, there has been a cap placed on punitive damages so that they may not exceed three times the amount of compensatory damages, unless the plaintiff can demonstrate by clear and convincing evidence that a greater award is not excessive. Additionally, such awards do not go entirely to the plaintiff. Forty percent of the award is payable to the plaintiff while the remaining sixty percent is paid either by the Public Medical Assistance Fund or the General Fund, depending on the circumstances. Finally, the plaintiff cannot claim punitive damages on the initial suit until he has demonstrated to a court that there was a reasonable basis to allow the recovery of such damages, and only then may he file such a claim.

Although the above-mentioned damages are allowable in certain conditions, they will not be awarded unless it can be demonstrated that a breach of the acceptable standards proximately caused the damage or injury. Obviously, there has to be some limitation as to which acts will be considered to bear the responsibility of an injury. As stated in one prominent legal text,

"...in a philosophical sense, the consequence of an act goes forward to eternity, and the causes of an event go back to the dawn of human events and beyond. But any attempt to impose responsibility upon such a basis would result in infinite liability for all wrongful acts and would set society on edge and fill the courts with endless litigation."

To establish such boundaries, courts utilize various tests to determine whether legal causation exists. In Florida, the test adopted is entitled the "but for test." In essence, it requires that a plaintiff must demonstrate that but for the negligent act, the injury would not have occurred.

Obviously, there are some difficulties which occur with this test. One of these arises from situations where two acts occur concurrently, either one of which, could have produced the same injury. For example, consider the situation where two doctors treat a patient at the same time. Each harm the patient in such a fashion that his act alone would have been sufficient to cause the injury. If we were to use the strict "but for test," each doctor would be free of liability in that it could not be said that but for his act, the injury would not have occurred. To avoid this result, another test is utilized in such circumstances called the "concurring cause test." The instruction read to the jury in this situation defines the parameters as follows:

"In order to be regarded as a legal cause of injury, negligence need not be the only causing factor, though it operates in combination with the act of another, some natural cause or some other cause, if such other cause occurs at the same time as the negligence and if the negligence contributes substantially to producing such an injury."

Another difficulty with the "but for test" arises when an act, independent of the original negligence, occurs between it and the injury. This is distinguishable from concurring causes which occur at or near the same time. For example, consider the situation where a physician commits a negligent act requiring that a patient be hospitalized. During that hospitalization, another physician commits a second negligent act which aggravates the original injury. In this circumstance, the second physician's act may be said to have intervened between the original act of negligence and the ultimate injury. Often it is impossible to separate the degree of aggravation caused by these two acts. In spite of this, the law does not allow the original; nor the subsequent actor, to escape liability. The test employed in determining where the liability lies is whether the subsequent or intervening act was foreseeable. Because negligence is thought to be foreseeable (an interesting conclusion), the original actor is responsible not only for his act, but for that of each and every other intervening act, including negligence. He would, of course, be allowed to join in the second physician under various theories of law so as to more equitably distribute the responsibility before the jury. If you think this is confusing, empathize with a jury that is tasked with following these rather technical instructions.