January 2, 2004
DAMAGES — MEDICAL MALPRACTICE
By: George Coppolo, Chief Attorney
You asked what are the elements of economic and noneconomic damages in a medical malpractice case.
In a medical malpractice lawsuit (just as in any personal injury lawsuit), there are two types of damages: economic and noneconomic. Economic damages are monies awarded as compensation for monetary losses and expenses, which the plaintiff has incurred, or is reasonably likely to incur in the future, as a result of the defendant's negligence. Noneconomic damages are monies awarded as compensation for non-monetary losses and injuries, which the plaintiff has suffered, or is reasonably likely to suffer in the future, as a result of the defendant's negligence.
There appears to be no statute or court case that contains a complete list of all possible economic or noneconomic damages. And while there are official and unofficial sample or recommended jury instructions for medical malpractice as well as other personal injury cases, there is no definitive or uniform set of jury instructions that judges must give to a jury. We spoke with Judge Lagenback who recently presided over a medical malpractice case against Hartford Hospital that resulted in a large jury verdict. He told us that the judge has the duty to give the jury charge concerning damages that he believes is appropriate in light of the evidence offered and the claims for damages the plaintiff has made. A judge can rely on sample jury instructions and on proposed instructions each side presents, but ultimately it is the judge's decision based on his understanding of the law of damages as established by statutory and case law. If a judge gives an incorrect instruction, any party may appeal, and the verdict could be overturned.
The statutes require that the jury or, if there is no jury, the court to specify: (1) the amount of economic damages; (2) the amount of noneconomic damages; and (3) any findings of fact necessary for the court to specify recoverable economic damages and recoverable noneconomic damages (CGS § 52-572h). This law defines "economic damages" as compensation determined by the trier of fact for pecuniary losses including, but not limited to, the cost of reasonable and necessary medical care, rehabilitative services, custodial care and loss of earnings or earning capacity excluding any noneconomic damages. It defines "noneconomic damages" as compensation determined by the trier of fact for all nonpecuniary losses including, but not limited to, physical pain and suffering and mental and emotional suffering.
Because the statutes do not contain an exhaustive list of economic or noneconomic damages, courts must look to the common law to determine what is recoverable as an economic or nonecomic damages.
Based on our examination of case law and recommended jury instructions, the following types of economic and noneconomic damages are recoverable if proven by the injured party: Economic damages can include lost wages and other income including benefits such as pension contributions, medical care and expenses, custodial care, lost earnings, lost earning capacity, and funeral expenses if the injury resulted in death. Noneconomic damages can include physical pain and suffering, mental distress and suffering, permanent impairment or loss of function, disfigurement, loss of the ability to enjoy life's pleasures, loss of consortium, and death.
The background information is taken almost verbatim from the Judicial Department's web site under the heading of Civil Jury Instructions. They were compiled to assist judges. Their use is discretionary. Whether any jury instructions are sufficient and accurate is a question of law, which either party can appeal.
An injured plaintiff is entitled to recover all the damages caused by the negligent act. To be entitled to damages a plaintiff must establish a causal relation between the injury and the physical condition, which he claims resulted from it (Bates v. Carroll, 99 Conn. 677, 679). This causal connection must rest upon more than surmise or conjecture (Witowski v. Goldberg, 115 Conn. 693, 696). The trier of fact is not concerned with possibilities but with reasonable probabilities (Richardson v. Pratt & Whitney Mfg. Co., 129 Conn. 669,672).
Under the law of damages, insofar as money can do it, the plaintiff is entitled to receive fair, just and reasonable compensation for all injuries and losses, past and future, which are proximately caused by the defendant's proven negligence. Negligence is a proximate cause of a loss or injury if it is a substantial factor in bringing that loss or injury about.
Under this rule, the purpose of an award of damages is not to punish or penalize the defendant for his negligence, but to compensate the plaintiff for his resulting injuries and losses. The jury is instructed to attempt to put the plaintiff in the same position, as far as money can do it, that he would have been in had the defendant not been negligent.
The law imposes certain rules to govern the award of damages in any case where liability is proven. Just as the plaintiff has the burden of proving liability by a fair preponderance of the evidence, he has the burden of proving his entitlement to recover damages by a fair preponderance of the evidence. Thus, the plaintiff must prove (1) the nature and extent of each particular loss or injury for which he seeks to recover damages and (2) that the loss or injury in question was proximately caused by the defendant's negligence. The jury may not guess or speculate as to the nature or extent of the plaintiff's losses or injuries. Its decision must be based on reasonable probabilities in light of the evidence presented at trial. Injuries and losses for which the plaintiff should be compensated include those he suffered up to and including the time the jury deliberates, and those he is reasonably likely to suffer in the future as a proximate result of the defendant's negligence.
Once the plaintiff has proved the nature and extent of his compensable injuries and losses, it becomes the jury's job (or the court's if there is no jury) to determine what is fair, just and reasonable compensation for those injuries and losses. There is often no mathematical formula in making this determination. Instead, the jury must use human experience and apply sound common sense in determining the amount of the verdict.
In a personal injury action, there are two general types of damages: economic and noneconomic damages. Economic damages are monies awarded as compensation for monetary losses and expenses, which the plaintiff has incurred, or is reasonably likely to incur in the future, as a result of the defendant's negligence. They are awarded for such things as the cost of reasonable and necessary medical care and lost earnings. Noneconomic damages are monies awarded as compensation for non-monetary losses and injuries, which the plaintiff has suffered, or is reasonably likely to suffer in the future, as a result of the defendant's negligence. They are awarded for such things as physical pain and suffering, mental and emotional pain and suffering, and loss of diminution of the ability to enjoy life's pleasures.
Following are recoverable economic and noneconomic damages in a medical malpractice case.
Medical Care and Expenses
The plaintiff is entitled to recover the reasonable value of medical care and expenses incurred for the treatment of injuries sustained as a result of the defendant's negligence. The plaintiff must prove that the expenses he claims were reasonably necessary and proximately caused by the defendant's negligence.
Loss of Earnings or Earning Capacity
The plaintiff is also entitled to recover any lost earnings that he proves to have been proximately caused by the defendant's negligence. With respect to lost earnings up to the present time, the plaintiff must prove that the defendant's negligence has prevented him from receiving the earnings for which he seeks compensation. He must do so by establishing a reasonable probability that his injury brought about a loss of earnings. The evidence must establish a basis for a reasonable estimate of that loss.
Loss of Earning Capacity
The plaintiff is also entitled to damages for the loss of future earnings based upon the evidence as to what he probably could have earned but for the harm caused by the defendant's negligence and as to what the plaintiff can now earn through the earning period of his life.
A plaintiff who is injured by the negligence of another is entitled to be compensated for all physical pain and suffering, mental and emotional suffering, loss of the ability to enjoy life's pleasures, and permanent impairment or loss of function that he proves by a fair preponderance of the evidence to have been proximately caused by the defendant's negligence. As far as money can compensate the plaintiff for such injuries and their consequences, the jury must award a fair, just, and reasonable sum. The jurors must use their own good judgment in awarding damages in this category. They must consider the nature and duration of any pain and suffering that they find.
Mental Distress and Suffering
A plaintiff who is injured by the negligence of another is entitled to be compensated for mental suffering caused by the defendant's negligence for the results that proximately flow from it in the same manner as he is for physical suffering. Included within this class of damages is the fear that death will result from an injury, if the jury concludes the plaintiff honestly had this fear.
Loss of the Ability to Enjoy Life's Pleasures
The jury must consider, as a separate category for awarding damages in this case, the length of time the plaintiff was, or will probably be, disabled from engaging in activities which he enjoys.
Permanent Impairment or Loss of Function
If the jury finds that it is reasonably probable that the plaintiff has suffered permanent physical harm, loss of function or disfigurement, he is entitled to be compensated for that category of injury. The award should be in accordance with the nature and extent of such physical impairment, loss of function, or disfigurement and the length of time he is reasonably expected to endure its negative consequences. Typically, the court will instruct the jury as to the use of any evidence of life expectancy that has been introduced. But while mortality tables are generally held admissible to assist the jury to estimate the expectancy of a plaintiff's life and thus determining the period of the probable duration of a permanent incapacity, they are not necessarily conclusive nor are they the exclusive evidence admissible. A jury may also consider other evidence such as age, health, habits, and physical condition.
The jury may also assess fair compensation for any disfigurement such as scaring. It must take into consideration any reasonable probability that the disfigurement will be less noticeable as time goes on and also taking into consideration any mortification and anguish the plaintiff has suffered and will in the future suffer.
The plaintiff is entitled to full compensation for all injuries and losses proximately caused by the defendant's negligence even though those injuries and losses are more serious than they otherwise would have been because of a pre-existing condition. The jury may not compensate the plaintiff for the pre-existing injury itself. But, the aggravation of such an injury, proximately caused by the defendant's negligence, is a proper item of noneconomic damages.
Damages for Death
Damages for death are allowed as compensation for the destruction of the decedent's capacity to carry on life's activities, including his capacity to earn money. It is the sum that would have compensated the deceased so far as money could do for the destruction of his capacity to carry on life's activities, as he would have done had he not been killed, including the destruction of his earning capacity.
Loss of Consortium
The law allows damages for the loss of consortium. These are damages due a spouse because of injuries to the other spouse (Hopson v. St. Mary's Hospital, 176 Conn. 485). “Consortium” encompasses the services of the spouse and the variety of intangible relations that exist between spouses living together in marriage. These intangibles are generally described in terms of affection, society, companionship, and sexual relations. They have also been defined as the constellation of companionship, dependence, reliance, affection, sharing and aid, that are legally recognizable, protected rights arising out of he civil contract of marriage.