The Fifth Element of Negligence

Abstract

Q Did the injury to the patient produce compensable damages?A Finally, the money part of the litigation process rears its costly head. Before a case can even get to this point to determine compensation, each element of negligence must be found by the “preponderance of the evidence.” This standard is a much lesser one because it is a civil case. In a criminal case, the evidence presented must meet the standard of “beyond a reasonable doubt.”Damages are specified only after liability has been found. In a civil case, monetary damages are the most prevalent way to make the injured party whole. Other ways that can be a part of the damage equation may be a change in policy or disciplinary procedures. However, these remedies only help to ensure that the situation does not occur again. The primary way a plaintiff is made whole is through monetary compensation.First, special damages are determined. Special damages are also called out-of-pocket or economic damages. These damages are a specific number and include any monetary expenditures by the plaintiff that are economic, such as medical expenses, lost wages, pharmaceuticals, therapy, housekeeping, and replacement of property. In other words, anything that can be specifically shown through statements, receipts, pay stubs, or bills and was needed to bring the plaintiff back to his or her preinjury status can be called a special damage. This is a specific number and can only be claimed with proof.Second, the plaintiff seeks general damages. These damages are also called noneconomic damages and include pain and suffering, emotional distress, or loss of consortium. It is difficult to determine how much an individual’s pain and suffering are worth, and therefore it is difficult to ascertain a specific number for these damages. For this portion of the lawsuit, a judge or jury can award monetary damages in 6- or 7-figure amounts. Again, the plaintiff has the burden of proof to bring in evidence that supports the claim for general damages.Another area for monetary damages is called punitive damages. These damages are requested by the plaintiff and again must be proven by the plaintiff. Punitive damages are the judicial systems remedy for especially egregious behavior such as sexual misconduct, fraud, abuse, conspiracy, cover-up of medical errors, amending or modifying medical records, and other intentional behaviors. Punitive damages are intended to add punishment above and beyond special and general damages. Punitive damages are not available in every state and some states demand that a plaintiff show that he or she has the facts to support a finding of punitive damages before it can be included in a damage claim.Once liability has been determined, the damages battle is fought. Most cases are negotiated to a settlement before going to trial. In such a case, the parties come to an agreement about what is reasonable for both sides. If a case goes to trial, the judge or jury will determine what the monetary damages will be if liability is found.In any event, it is a long and complicated process to get to the damage resolution. Much discovery has preceded any determination of damages and it can take months or years before damages are seriously considered in a lawsuit.Next month we will discuss different approaches to resolving lawsuits once all the elements of negligence have been met.