Calculating Your Medical Malpractice Case

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One of the first and most significant calculations when considering a medical malpractice case is its worth. By worth, we mean the total possible dollar value obtainable through settlement or jury award. Typically, plaintiffs’ lawyers have to invest a lot of time and resources into a case and they are only paid or reimbursed if they win. Therefore, performing a careful and exact measurement ex ante will help you decide if you can take on a case. This page is designed to help shape that analysis.

In the beginning, there are a number of things to consider before actually calculating a possible return. Here’s a brief list:

  • Who was actually at fault? One defendant? More than one defendant?
  • Was the liable defendant acting in the scope of employment because then the company should be liable too?
  • Are any of the defendants judgment-proof (i.e. too poor to pay an award or settlement)?
  • Was the plaintiff at all responsible?

The above list should give your calculation context and shape but the total amount of damages is what fills that structure. There are several kinds of damages. Here is a brief description of the various types:

  • Special or economic: These are damages that can be easily ascertained. You can put a price tag on them without too much difficulty. In Illinois medical malpractice cases the clearest forms of economic damages include medical bills for treatment, care, surgeries, and medications resulting from the healthcare provider’s negligence. However, other forms of economic damages include lost wages from the inability to work or maintain investments because of the malpractice. In other contexts, property damage would come in under this category although that is less relevant in the medical malpractice scenario.
  • General or non-economic: These damages refer to intangible decreases in the quality of life of a plaintiff. While just as real as economic damages, they are much harder to define and estimate. Examples of non-economic damages include disfigurement, disability, loss of enjoyment, and pain and suffering to name a few. There used to be a cap on non-economic damages, limiting recovery to $500,000 against doctors and $1,000,000 against hospitals (see 735 Ill. Comp. Stat. Ann. 5/2-1706.5) but that was ruled unconstitutional in Lebron v. Gottlieb Memorial Hospital. See 237 Ill.2d 217, 930 N.E.2d 895 (2010).
  • Punitive: Punitive damages are awarded to plaintiffs when the defendant’s conduct is thought to be egregiously negligent or wanton. They are meant to deter similar conduct from taking place. However, punitive damages are not allowed in Illinois medical malpractice cases. See 735 Ill. Comp. Stat. Ann. § 5/2-1115. Further, the Supreme Court has already held that this prohibition in constitutional in Bernier v. Burris. See 113 Ill. 2d 219, 497 N.E.2d 763 (1986).
  • Wrongful Death: If the medical malpractice resulted in the death of the plaintiff, then a wrongful death action can be instituted and that raised additional damages concerns. These generally revolve around the age, employment, health and other various factors of the decedent. Yet, causes of action can be brought by spouses, kids, and even parents for damages related to pain and suffering, loss of earnings, loss of companionship, and loss of support to name a few.

After looking at these different dimensions of damages and coming to a preliminary figure, think about where you can find that money. Illinois has joint and several liability. 735 Ill. Comp. Stat. Ann. § 5/2-1118, see Best v. Taylor Machine Works, 179 Ill. 2d 267, 689 N.E.2d 1057 (1997) (holding that a bar on joint liability was unconstitutional). This means that all defendants are liable for the entire portion of damages. They can later go seek contribution from other defendants but that is of no concern to your client, the plaintiff. Therefore, to save time and money, go after defendants with deeper pockets. Find ones that might be vicariously liable for the acts of their agents and/or employees under respondeat superior.

Finally, consider the limit that your client’s negligence will have on the total award possible. Illinois is a modified comparative negligence state. This means that plaintiffs recover their damages minus the percentage that they were responsible, and nothing at all if they were more than half at fault. So, this threshold question should factor in heavily when determining if there will be enough left over to consider bringing a case.

These factors should guide your calculation of the possible worth of an Illinois medical malpractice case and help you decide if you should take on the case.

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