Medical Malpractice (MM) can be defined in diverse ways. One definition suggests that MM is a type of negligence whereby injuries caused to the patient results as from a medical practitioner’s act of failing to exhibit a reasonable degree of skill, diligence and care in discharging his/her professional duties (Sage & Kersh, 2006). The word medical practitioner is used in this case to include doctors, nurses, psychiatrists, dentists, medical technicians and other providers of health care. Moreover, reasonable skill, diligence and care refer to what a reasonable practitioner would do, when confronted with a medical problem, in the ordinary course of events. An ordinary medical practitioner is therefore used as a yardstick for determining liability in Medical Malpractice lawsuits.
Medical Malpractice may also refer to the act of medical practitioners exhibiting negligence while discharging their duties. In law, a patient (plaintiff) is entitled to several remedies for damages caused to him or her by a negligent doctor (Frank & Lindsey, 2008). This implies that medical practitioners should take extreme caution while pursuing their duties; otherwise they would be held liable in negligence. In a negligent medical malpractice case, two types of damages are available; punitive damages and compensatory damages.
Worthwhile noting, medicine, as a profession does not solely entail duty to cure or even deliver high quality results from a medical treatment. Rather, it entails the act of providing medical services that meet the predetermined standards in the society, or in the case of a medical specialty, the generally accepted standards of that area of specialization. Moreover, given that a medical professional is not a science of accuracy, medical practitioners are not expected to always be right when making a diagnosis. It is possible for a misdiagnosis to exist even after proper and accurate medical examinations and evaluations are conducted by a skilled practitioner, while observing reasonable diligence and extreme caution. The impression created here is that not all unsuccessful medical treatments can actually amount to Medical Malpractice. However, misdiagnosis arising from the failure of medical practitioner to get the relevant history about a certain medical complication, and or the subsequent failure to conduct relevant tests and examinations, or even the failure to observe illness symptoms that are observable by an ordinary medical practitioner automatically amounts to Medical Malpractice.
The scope of this paper deals with compensatory damages only. However, to create a better understanding of Medical Malpractices a prior understanding of the differences between the two damages is indispensable. Punitive damages are offered only in special circumstances where gross misconduct and intentional negligence can be proved on the side of the defendant (medical practitioner). The rationale behind offering these damages is to prevent a medical practitioner from repeating the same act at a future date. It is rather ironical; but true, that a patient can maintain an action against a doctor for failing to deliver the agreed quality of performance. This means that if a doctor promised a patient that he would handle a certain medical complication successfully, he would be held liable for failing to do so. In such a phenomenon, the patient can successfully claim for punitive damages. It is a bit interesting that in a typical Medical Malpractice lawsuit, a doctor might be held accountable for treating a patient without his/her consent. In such scenario, this amounts to wrongful touching and an action for punitive damages can successfully be maintained by the patient.
On the other hand, compensatory damages have been derived from the word “compensate” which means to stand good for the loss. As such, compensatory damages are types of medical liabilities in Medical Malpractices cases designed to compensate the patient for the losses suffered; either financial or otherwise in a medical treatment. Such damages are broad to cover things like financial loss, pain, suffering, mutilation and consortium related losses. Compensatory damages can further be divided in to two other sub-categories; general damages and actual damages. Actual damages seek to compensate the patients for expenses met by money from their own pockets and also for other financial losses.
More specifically, actual compensatory damages compensate losses arising from: hospitalization bills and medical bills incurred while treating a patient; wages lost while a patient remains out of work as he recovers; and costs of home nursing help including relevant costs viz. cost of a wheel chair. On the other hand, general compensatory damages deal with losses arising from: lost opportunities, loss of consortium, pain and suffering, salary and wages that a patient is likely to lose in the foreseeable future, and medical expenses a person is likely to incur in the future. It is evident that the scope of general compensatory damages goes beyond things that can be quantified in monetary terms to dealing with other more complex aspects.
General Types of Compensatory Damages in Medical Malpractice Cases
• Loss of Income
This is a type of compensatory damage whereby a patient is entitled to compensation in the event that he has injuries (from Medical Malpractice) that prevent him from working. Inability to work is a kin to loss of income. The rationale behind this compensatory damage is that if an employee cannot work for a certain duration of time, simply because he has sustained injuries, he is entitled to compensation for the wages lost during that period. Furthermore, a worker is also entitled to compensation if he misses work in search for treatment. In the extreme cases; where the injuries suffered are very serious, a person can maintain a legal action for "loss of future earnings capacity." Moreover, if the injuries results to death, members of the deceased’s family can sue for the income the worker would have gained in his entire work-life. When the compensations are made at present, the cumulative income that the deceased would have been awarded must be discounted to the present value using an appropriate discounting factor.
• Loss of consortium
A Medical Malpractice may leave a victim in a situation of severe pain, and or permanent disability. Disability may make a patient to lose consortium i.e. love and affection. Personal injury laws recognize such damages as compensable. Such disability may frustrate romantic and recreational activities that are enjoyed by two spouses together by making them impossible to be enjoyed. It is imperative to note that some faulty diagnosis may make a husband impotent thereby unable to consummate a marriage. Compensatory damages for loss of consortium can also be maintained when a medical treatment; Medical Malpractice, causes some sorts of disability to a spouse thereby making him or her unable to discharge duties relied upon by the other spouse. Ordinarily, damages offered for loss of the consortium are usually lesser than those offered for pain or suffering. Damages for loss of the consortium are usually awarded in extraordinary circumstances.
• Pain and suffering
Negligence on the part of a medical practitioner may cause a patient more pain and suffering than before. Pain is a personal feeling and therefore difficult to quantify. However, the severity of pain can be measured by things like the use of painkillers, the length and also the frequency of treatment, recovery time as well as types of treatment. It is difficult to accurately tell whether a medical treatment has indeed subjected a patient to more pain and suffering. In some instances, witnesses who were well aware of the patient’s condition before the treatment would be required to testify before a court of law. The logic behind this is to compare the patient’s condition before and after the treatment. However, an action against suffering and pain can be maintained successfully if negligence can be proved on the part of the medical practitioner.
• Lost opportunity
Additionally, a negligent medical practitioner may offer a patient a medical treatment that causes him injuries. Such injuries may lead to the subsequent loss of an opportunity by the patient. For instance, a faulty injection; which amounts to Medical Malpractice, may make a patient lose his leg (may necessitate the chopping off of the leg). Suppose the patient in question was a marathon runner. This automatically means that he loses the opportunity of continuing with his career. However, extreme caution should be taken while seeking to sue for lost opportunity. It should be recorded that such claims will only succeed if there is a sufficient evidence of a lost opportunity. Moreover, speculation claims can actually ruin the possibility of successfully maintaining a legal action for lost opportunity (Frank, 1994).
The Legal Process for Claiming Compensatory Medical Malpractice Damages
If a person is involved in a situation whereby an error by a medical practitioner resulted to Medical Malpractice, he/she may seek to maintain a legal action against the practitioner (Richard, 2005). If the court decides in favor of the patient, he; the patient, may be compensated for medical expenses, lost wages among other losses. Otherwise, a Medical Malpractice lawsuit may be too expensive for the patient and his family. It is imperative to note that Medical Malpractice cases are usually complex. With this regard, the plaintiff will in most cases seek the help of a practicing attorney to help in the process. The process of claiming compensatory damages must be characterized by some elements viz. duty of care, breach of the duty, causation and damages. These are elements that must be identified on the part of the medical practitioner for compensatory claims to succeed.
• Duty of care
Here, the court seeks to determine whether the doctor owed the patient a duty of care. This is the first condition precedent for any compensatory claim to succeed. There is a general rule that a doctor owes his patient a duty of care. However, this is only the case when there exists a doctor-patient relationship otherwise not. The standard of care described in this case is that of an average doctor. With this regard, whether an excellent doctor, while discharging his duties, would have committed the same error or not is immaterial.
• Breach of the duty of care
Revealing that a doctor owed the patient a duty of care is only a necessary but not a sufficient move. The patient needs to prove that the doctor actually breached the duty of care. Otherwise, he would not succeed in suing for compensatory damages. A doctor is said to have breached the duty of care if he acted in a manner that a reasonable doctor, in his position, would not have acted. What is a reasonable doctor depends on circumstances of the case in question. It is important to note that specialists are more likely to breach the duty of care than ordinary physicians. This is because specialists are usually held accountable to higher care standards than general physicians.
After determining that the doctor actually breached the duty of care, the next step in claiming compensatory damages is to prove that as a result of the doctor’s breach of duty, the patient suffered injuries. The rationale behind causation is that a claimant must prove beyond a reasonable doubt that the breach of duty by the doctor was the direct cause of the injuries that he suffered. Otherwise, he would be unsuccessful in claiming compensatory damages. If it is held that more likely than not i.e. a probability of 51%, that the doctor’s breach was the direct cause of the injuries, then a patient must be awarded compensatory damages (Paul, 1991).
The next step is to determine whether the breach of duty caused the patient economic damages e.g. lost income, medical expenses among other expenses. However, a patient can also be compensated for a damage that cannot be quantified in monetary terms viz. pain and suffering. In rare circumstances, he can also be awarded punitive damages.