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Medical Malpractice

Analyzing Damages

  1. Types of Damages
    1. Nominal - vindication but no money
      1. Preserve the verdict
      2. Can trigger attorney's fees
    2. Punitive - punish and deter
      1. Blurs torts and criminal law
      2. Either unbounded or bounded
      3. Policy question - insurable?
        1. no insurance - no recovery for plaintiff
        2. insurance - no punishment for defendant
      4. current controversies
        1. sexual assault by lawyers and doctors
        2. limited potential recovery without insurance
        3. unjustly punish honest practitioners through risk sharing
    3. Compensatory - "make the plaintiff whole"
      1. Reduce plaintiff's claims to money
      2. Non-wage claims Currently tax-free
      3. Lump sum of periodic payment
  2. Elements of damages
    1. past and future
      1. Past is certain
      2. Future is speculative
    2. Direct and indirect
      1. direct is to injured plaintiff
      2. indirect to persons associated with plaintiff
    3. Direct damages
      1. All have severity and time components
      2. All terminate with death of plaintiff
      3. Lost wages
        1. Lost wages - past
        2. Lost wages - future
          1. fixed wage until retirement
            1. persons with no career opportunities
            2. persons topped out in their career
          2. loss of future earning capacity
            1. persons with prospects
            2. depends on position on the life curve
              1. age 0 - nothing
              2. age 10 - star or punk / still limited
              3. age 18 - good record/good college
              4. age 25 - job with future or graduate school
              5. age 30 - job progression or completing school
              6. age 40 - starts to peak
              7. age 50 - definitely set
              8. age 60 - plateau
              9. age 65+ - downhill slide
            3. depends on job
              1. pediatrician - 100,000
              2. cardiac surgeon - 1,000,000
              3. college professor - 40,000 - 250,000
            4. depends on expected length of career
              1. sure dollars at 60 but limited years
              2. speculative at 30, but lots of years
              3. integral under the curve
      4. Medical bills
        1. Past
          1. who paid them?
          2. gifts of services inures to the plaintiff
          3. includes transportation and accommodation
        2. Future
          1. custodial care - big bills
          2. know future needs
            1. surgery for burn victims
            2. revisions for growing children
          3. potential future needs
            1. traumatic arthritis
            2. failing joint replacements
            3. complications of adhesions
      5. Disability
        1. in addition to effect on wages
        2. interference with daily life
          1. sports and hobbies
          2. playing with the kids
          3. caring for one's self
          4. sexual function
        3. impairment of reproductive potential
          1. childbearing capacity
          2. sterility, male or female
      6. Hedonic damages - death as the ultimate disability
        1. an extra kicker for all the fun you miss by being dead.
      7. Natural extensions
        1. quantum meruit for killing miserable plaintiffs
        2. no recovery for people who believe in an afterlife.
      8. Disfigurement
        1. Minor Cosmetic impairment
          1. You make the case - young, old, pretty, plain, male, female, married, etc.
        2. Substantial impairment - o-my-god test
          1. original status almost irrelevant
          2. usually burns
          3. sometimes avulsion (road rash)
        3. Can relate back to wages
        4. Especially a problem for children
      9. Pain
        1. Past
          1. generally judged on severity of injury
        2. Future
          1. Question of accommodation
          2. Extent of possible mitigation
          3. Hard to prove
          4. Must be conscious of suffering
      10. Emotional suffering
        1. Helped by physical stigmata
        2. Hurt by whining
    4. Indirect damages
      1. Parameters are closeness of relations and number of relations
      2. Clean kills of lonely orphans are free
      3. Loss of consortium - historically spouses
        1. sexual services
        2. companionship
        3. should it terminate on remarriage/reassociation?
        4. should remarriage be admissible?
      4. Loss of household services
        1. Husband or wife
        2. Cooking, cleaning, fixing the furnace
        3. Cost of contracting services
        4. Potential substraction of room and board costs
      5.  
      6. Loss of guidance and counsel
        1. death of grandparents and persons with non-dependent children
        2. must show close relationship
      7. Personal costs of caring for plaintiff
        1. loss of outside income
        2. necessary costs not covered by direct damages
      8. Emotional suffering
        1. Concern about plaintiff
        2. Inconvenience caused by plaintiff
        3. Possible direct damages if in "zone of danger"
  3. Collateral source rule
    1. defendant should not benefit from plaintiff's foresight and frugality
    2. amounts to paying "double" in some cases
    3. not a constitutional issue - can abolished by statute
    4. key to the "tort problem"
    5. with national health and disability insurance you could collateral source most of the damages in tort cases - this is the heart of the lack of tort law in the rest of the civilized world.
  4. Net present value
    1. present worth tables
    2. cost of annuity
    3. fight about assumptions
    4. periodic payments
      1. guaranteed return and kickers
      2. can be pegged to inflation
      3. advantages
        1. most plaintiffs cannot manage money
        2. can factor in reduced lifespan
      4. disadvantages
        1. guarantor can become insolvent
        2. defendant can gain by early death of plaintiff
  5. Proving damages
    1. Must put on evidence for each element
    2. Must be related to the injury
      1. Remittur - reduction or new trial
      2. Additur - addition and no new trial
      3. questionable because of coercion - not in federal courts

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