If you think that you have a valid medical malpractice case, you may request information from your attorney as to what that value is and how it’s determined.
It is important to realize that no two medical malpractice cases are ever the same. Even if you have the exact same error, how those errors apply to your payouts will depend on a variety of factors. These factors are what insurance companies and attorneys consider before coming up with a “value” of your case.
The Trial and Settlement Value are Not the Same
The most important thing to know is that there are two ways a lawsuit is settled when it comes to medical malpractice. First, you could settle your case out of court, which is a settlement. If a settlement cannot be agreed upon during negotiations, you could then go to court and receive a trial judgment.
The case’s value is typically what your attorney would hope to settle for if you could settle out of court. The settlement value is lower than the trial value, because the costs associated with taking a case to trial are much higher, and if you were to lose in court you would not be able to collect any settlement.
The trial value of your case is what your attorney would expect to earn if they had taken your case to court and won. However, he would also assess the likelihood you would win your case and the value of that win.
So, for a trial value, your attorney might assume that you would have a multiplication of the out of court settlement value to also cover court costs and fees.
Calculating Damages is Not Straightforward
One reason you are encouraged to hire a personal injury attorney is that an attorney knows how to properly calculate these damages. They know the special values that can take away or add to your case. Also, there are damages that are easily calculated, while others are based on case law and your attorney’s expertise in your injury case.
Regardless, your attorney may need to consult with multiple experts before he or she can come up with an exact settlement amount.
The Damages Capable of Exact Calculation
Certain damages are easier to calculate than others. These are called special damages. Special damages are losses that your attorney can prove using bills, receipts, and other documents to come up with a settlement value.
The Present Value of Your Losses
First, your attorney will have to look at the future lost earnings or your lost earning capacity, which then involves calculating the losses that could go several years into the future. Naturally, inflation is a factor. Your wages today and earning capacity would likely fluctuate in the future. The present value considers the value of your future income stream as if you were to receive it today in your paycheck.
Therefore, how much money would your employer have to have in their payroll funds to pay you today for your salary over the next one to 20 years? This calculation, even for accountants, is highly complex. Accurate calculations often require the combined efforts of your attorney and an economist.
Issues with Calculating Lost Wages and Loss of Earning Capacity
Several issues occur when calculating these types of claims. For starters, if you are not working at the time of your injury, it is hard to calculate what you would or would have made. Also, if the injury occurred, but you had plans to obtain a new job, how would an attorney calculate wages if you were to receive that new position?
Lastly, self-employed individuals will often find that they have difficulty creating accurate calculations for their wages, because their income is likely to fluctuate.
What if You are Unemployed?
If you are unemployed at the time of your injury, then your attorney will still seek lost wages. However, this time he may look at the earnings of your previous job and use that to determine your lost earning capacity.
If you have not worked for several years at the time of your accident, you may not receive lost wages or loss of future earning capacity. A defense attorney will likely argue that you have not proven your capacity to work, and are therefore not entitled to such compensation.
What about Future Medical Costs?
Another special damage is the future medical costs of your injuries. These are much harder to calculate. Catastrophic injuries will often lead to lifetime medical care. This could result in a seven-figure number once your future medical costs are calculated.
Lawyers will usually use a special expert, which is a medical economist, who will testify as to the amount estimated for those future medical costs and then determine an accurate amount required to adequately compensate the victim.
What Damages are Harder to Calculate?
Non-economic damages are harder to calculate, because these are not fixed amounts. Instead, these damages require your attorney to put a dollar amount on your pain and suffering. This is a nebulous area that is difficult to put a dollar figure on. So how is it done?
The insurance company will use something called a multiplier. They will estimate your pain and suffering based on the economic value, and then use a formula to multiply it by a specific number.
It is important to not that multipliers are not used by juries. So if your case goes to trial your pain and suffering is calculated by the jury. They will take certain factors of your case into consideration to determine how much you deserve in economic damages.
How Pain and Suffering Damages are Calculated
To determine the value of your pain and suffering, your attorney will consider the specifics of your malpractice injury and how it will impact you for the rest of your life. These factors include, but are not limited to:
- If you were a good or bad witness in court;
- If the jury likes you;
- If the jury believes you about your injuries and the suffering you have experienced;
- If the jury thinks that the defendant is guilty of causing your injuries;
- If the defendant is not sympathetic;
- If the injuries you have are easy to understand and quantify.
The 6 Critical Factors that Determine Value
Six critical factors will determine the value of your overall personal injury or malpractice case. These factors are assessed by not only the attorney trying to put a value on your case, but also the jury that might decide the its fate.
Factor 1: The Severity of Your Injuries
The severity of your injuries plays a critical role in deciding how much your case is worth. The courts will not award a higher value to a partial disability or even a recoverable injury as they would with permanent disability.
You will need medical experts to testify as to the severity of your injuries and how long before you are expected to recover from those injuries.
Factor 2: The Influence on Your Life
The influence your injuries will have on your life also matter. If the injury is something that you must endure the rest of your life, you are going to receive a higher settlement value than someone who will eventually make a full recovery.
More so, the jury and the defense will look at specific factors to determine how your injuries will affect your life.
- Can You Work? First, they will want to know if your injuries are so severe that you cannot work in the future or you must give up your existing career because of the limitations your injury presents.
- Can You Spend Time with Family? The courts will also look at how you can interact with friends, family, and companions. If you can no longer support your family or even interact with them, the settlement value is often higher than someone who could still be a husband or even help raise their children.
Factor 3: Degree of Negligence
Also, the extent of the doctor or health care workers negligence plays a role in deciding how much your case is worth. If the negligence was severe and obvious, then you may receive a higher settlement than a case where some professionals would have committed a similar error.
To determine the degree of negligence, your attorney will consult with other medical professionals in a similar field and determine if that same physician would have made the same mistake or how they would have proceeded if they were in a similar situation.
Factor 4: Your Medical History
Your attorney will also review your medical history to see if any past conditions or injuries would have equally contributed to the injury. Also, if you have pre-existing conditions that would have played a role in the injury, and those pre-existing medical conditions were not disclosed to your physician, you may receive a lower settlement.
Factor 5: Pre-Existing Injuries
If you have pre-existing injuries, it is imperative that you always mention those injuries to your treating physician. If you fail to do so, then the courts may assume that you hid those injuries to receive a higher settlement.
Factor 6: The Damages Cap
Every state sets their own limitations for how much you can receive if you are injured because of malpractice. Connecticut, however, is one of the very few states that does not have a damages cap on medical malpractice cases. Also, punitive damages do not experience a damages cap. They are, however, limited to the litigation expenses minus your taxable costs.
While there are no hard damages caps, Connecticut does state that any time a non-economic damage award exceeds the seven-figure amount, it is subject to approval from the court pending the severity and applicability assessment. If the court feels that the verdict is excessive, they have the right to cancel and adjust the amount awarded to the plaintiff.
Attorneys fee are subject to a cap as well, which means your attorney cannot take more than one-third of your damages up to the $300,000 limit.