What Damages are Recoverable in a Medical Negligence Claim?

Written by Atlee Hall

Damages, or the harms, suffered due to medical negligence are a critical component of every case. Unfortunately, not all harms that are caused by negligence are recoverable under Pennsylvania law. This is an important aspect to understand when you are having your potential medical negligence case investigated as well as if and when your case is in litigation. This article will explain the different categories of damages which are recoverable under Pennsylvania law when negligence and causation can be established.


Medical Expenses – Past and Future

First, you are entitled to be compensated for the amount paid in past medical expenses that were reasonably incurred for the diagnosis, treatment, and/or cure of your injuries. This amount is a specific dollar amount that can be calculated and eventually presented to the jury if your case goes to trial. It is important to remember that depending on the type of health insurance you have, your health insurance company may be entitled to reimbursement for medical expenses they paid on your behalf as a result of the negligence. Your health insurance company may assert what is called a lien against any recovery you may receive.

You are also entitled to recover damages for future medical expenses and related care. This can include expenses for the purchase and replacement of medically necessary equipment, expenses for medications, expenses for home health aides, and other expenses depending on the type of injury in the case. Typically, a certified life care planner is utilized to help determine the specific future needs of an injured person. The life care planner will prepare a comprehensive overview of the future care needed and a total of the related expenses associated with that care. If your case goes to trial, the life care plan will be given to the jury for their review and consideration.


Wage Loss – Past and Future

If you have lost work due to your injuries, you are entitled to recover past wage loss as part of your damages. This amount is calculated by taking the difference between when you could have earned but for the harm or injury, subtracted by the amount actually earned in any employment. Opportunities for employment are also considered when calculating this amount.

If your ability to continue working in the future has been affected, you are also entitled to receive damages that fairly and adequately compensate you for future loss of earnings and earning capacity. There are many factors that a jury is asked to consider when determining this amount. Some of these factors include your age, education, work experience, physical condition before and after the injury, work done in the past, work you would have been doing had it not been for the injury, and the extent and duration of the injury. Typically, a vocational expert, as well as an economist, are consulted to help determine your future loss of earnings and earning capacity.


Noneconomic Loss – Past and Future

This is perhaps the most difficult category of damages to articulate. It is the noneconomic damages or losses that you have experienced because of your injury that cannot be associated with an exact dollar amount. Under Pennsylvania law, four items make up damages for noneconomic loss: 1) pain and suffering, 2) embarrassment and humiliation, 3) loss of ability to enjoy life’s pleasures, and 4) disfigurement. Pain and suffering encompasses the physical pain, mental anguish, discomfort, inconvenience, and distress that you have endured because of the injury as well as what you will continue to endure in the future because of the injury.

Factors to be considered for this category include your age, severity of injuries, permanency of injuries, how the injuries affect activities of daily life, duration and nature of medical treatment, duration and extent of pain and suffering, health and physical condition prior to the injury, and where applicable, the nature of disfigurement. Despite these factors, this category is typically the most difficult for a jury to assess because we are not permitted to suggest any specific dollar amounts for compensation under this category. Consequently, it is left entirely up to the jury and their own life experiences to come up with a figure to compensate you for these types of damages.


Loss of Consortium

If you are married, your spouse may be entitled to a loss of consortium claim. This type of claim is designed to compensate the spouse of the injured person for loss of services and companionship.  More specifically, these damages include the loss of company, society, cooperation, affection, support, comfort, assistance, association, companionship, and the loss of ability to engage in sexual relations.


Wrongful Death and Survival Actions

When a person dies as a result of medical negligence, the damages they would have been entitled to passes to their estate and wrongful death beneficiaries. Under the Survival Act, the estate stands in the shoes of the person who has died and is entitled to recover past and future loss of earnings, as well as the past noneconomic damages as described above. Under the Wrongful Death Act, qualified wrongful death beneficiaries are entitled to recover for the loss of support, financial contributions, as well as the loss of the care, love, society, guidance, solace and companionship of the person who has died.


Hopefully this overview has helped you to understand the different types of damages that are available in a medical negligence action. While damages are obviously a crucial part of any medical negligence case, none of these damages are recoverable if a breach in the standard of care as well as causation cannot first be proven or established.