It is essential that before you go ahead to claim any damages as a result of medical malpractice, you determine precisely what costs you will be suing for.
When we go to court to seek redress, we envisage the remedies we will get in line with the claim we are trying to stake. Hence, this implies that there are different forms of solutions to various claims, which is one of the things that your Nashville medical malpractice lawyer will acquaint you with. In law, there are several kinds of remedies (depending on either a civil or criminal case), and some of the most famously sought include: specific performance, injunction, restitution, and damages.
However, in claims of medical malpractice (all over the world and not merely in Nashville) the most sought after remedy is damages. And, the logic behind this is quite simple. The majority of the time, in cases of medical malpractice, life usually has been lost. Therefore, a verdict of specific performance or injunction will not be fair on the victim. And, even in cases where life has not been lost, the deed will have been done, and the damage already caused. This is why, in cases of medical malpractice, the most sought after remedy is damages.
What then are damages? Contrary to the idea that you might have had of damages being harmful, in specific contexts of the law, it means the direct opposite of that. Damages at contract law are a form of compensation (usually monetary), which a claimant is entitled to get from a loss or injury stemming from the negligence or unlawful action of another. Damages refer to the compensation which a person receives having been wronged by another who had an obligation to do otherwise.
Hence, this means that in a situation whereby a medical practitioner owed you the performance of a duty of care and refused to do such, you are entitled to a form of compensation upon seeking redress in a court of law. Although, unlike what most of us have relegated it too, the awarding of damages by a court is not always in monetary form. Damages could come in different ways, and it is up to the court to decide which way is the best. This also directly implies that there are different kinds of damages.
Before we delve into the kinds of damages, it of the essence for you to know that before a claimant can be awarded damages in a case of medical malpractice, such a person must be able to prove certain things. First, the plaintiff must be able to assert that the damage which was suffered was in some way caused by medical malpractice. Also, the claimant must prove that such loss sustained can be quantified in terms of money.
In cases of medical malpractice, there are three kinds of damages awarded to plaintiffs. They are: punitive, special, and general damages. These damages are merely classifications of the actual redress which a claimant is entitled to. We must explore each of them.
Punitive damages: Among all of the injuries that can be caused, resulting in a medical malpractice lawsuit, punitive damages cover the most intentional of them all. The requirement to have a case against a medical practitioner to be awarded punitive damages is dependent on the fact that the medical practitioner in question was fully aware of the fact that he or she was acting harmfully at the instance of the commission of the offense. And at times, this can be not very easy to prove. But in cases where it has been established, the damages are usually not significantly more than the regular damages awarded.
Special damages: Another kind of damages that are usually awarded is special damages. This is the kind of damages that are awarded in situations where the costs resulting from medical malpractice are more expressly quantifiable than others. Although at times, there might be a few ambiguities that can easily be guessed, it is usually more explicit to calculate than other damages. The help of an expert in such fields will be an added advantage (although this is mandatory in some states); however, in general, they are easier to quantify. This usually includes medical bills and several other expenses.
General damages: This is the most famous kind of damages and the most frequently discussed and sought after. General damages refer to the loss or injury which the plaintiff has suffered but are not automatically quantifiable. This happens in cases where the victim suffered damages in terms of loss of life, emotional stress/pain, or even loss of the capacity to earn a living. The costs in these kinds of cases cannot be easily quantified, hence they are referred to as general damages. In so much as evidence can be adduced to the satisfaction of the court that the claimant suffered either of these things as a result of the medical malpractice, then damages will be awarded by the discretion of the court.
Even though these remedies in the form of damages are available to victims of medical malpractices, we must note that there is no stipulated amount for compensation. And, all these verdicts will be given at the discretion of the court and in line with the law. Arriving at a price tag for these damages can be done in several ways, and these ways are subject to the decision of the court. Although, given the amounts of money that can be recovered, some states have set limitations in terms of money that can be claimed by plaintiffs. But this is not a general practice.
In cases where the medical malpractice led to the patient’s death however, the damages that can be recovered are covered by survival statutes and wrongful death statutes. Survival statutes refer to the estate of the deceased being entitled to recover the expenses that were expended from the beginning of the medical malpractice up until the death of the patient. In contrast, wrongful death statutes refer to compensation given to the estate of the deceased for other monetary losses in the future.
Conclusively, it is essential that before you go ahead to claim any damages as a result of medical malpractice, you determine precisely what costs you will be suing for. And doing this might not be the most straightforward task. Therefore you need help of a qualified attorney, like those at Cummings Law.