Trial Attorney Blog
Damages in a medical malpractice case are no different from those in a typical personal injury case. A plaintiff is entitled to recover both general and special damages. General damages, obviously, include compensation for physical and mental pain and suffering, both past and future, as well as a diminished capacity to work, labor, and earn money. These are elements encompassed in the definition of pain and suffering as well.
Because pain and suffering is considered an element of general damages, it is awarded to a plaintiff to compensate for non-pecuniary losses and hardships whether mental, physical, or both. The measure of such damages is the enlightened conscious of fair and impartial jurors. Roberts v. Chapman, 228 Ga. App. 365, 492 S.E. 2d 144 (1997). If a plaintiff can show that he or she will likely continue to suffer physical and mental pain as a result of injuries into the future, then the jury may award damages for future pain and suffering. Bennett v. Haley, 132 Ga. App. 512, 208 S.E. 2d 302 (1974). Again, a plaintiff’s diminished capacity to labor and earn money is an additional element of general damages which can be included in a pain and suffering award. Baxter v. Bryan, 122 Ga. App. 817, 178 S.E. 2d 724 (1970).
Special damages in a medical malpractice case can be extensive. If malpractice occurs and a plaintiff is hospitalized for weeks, if not months (and we have had cases where the plaintiff was hospitalized for over a year) the medical expenses can be extraordinary. Such damages, of course, are deemed to be special damages under O.C.G.A. § 51-12-2. Special damages include medical expenses, past, present and future, lost wages, future earnings and lost profits.
With respect to future medical expenses, “An award of future medical costs must be supported by competent evidence to guide the jury in arriving at a reasonable value for such expenses.” Bridges Farm v. Blue, 221 Ga.App. 773, 774(1), 472 S.E.2d 465 (1996), rev’d in part on other grounds, 267 Ga. 505, 480 S.E.2d 598 (1997). Thus, it is often necessary in a malpractice case to retain a life-care expert and economist. Both experts can assist plaintiff’s counsel in quantifying the cost of future medical care that may arise out of the malpractice at issue. Whatever reasonable expenses have been incurred by the plaintiff in the past are recoverable and usually are easily quantifiable. However, proving future damages likely will require that counsel consider retaining an economist and/or life-care expert.
With respect to lost wages, in order to prevent speculation, a plaintiff must provide evidence as to his or her rate of compensation at the time of the malpractice and the duration of his or her absence from the workplace. A plaintiff who is not employed or otherwise earning wages or compensation on the date of the incident in question is not entitled to recover special damages for loss of earnings. Mathis v. Copeland, 139 Ga. App. 68-69, 228 S.E. 2d (1976).
In a wrongful death context, the measure of damages is compensation for the full value of the life of the decedent. See generally O.C.G.A. § 51-4-1. Death claims in Georgia are typically divided into two separate claims. One is for the wrongful death per se as measured by the “full value of the life of the decedent” without deducting for any of the necessary or personal expenses of the decedent had he or she lived. The full value of the life of the decedent consists of two elements: (1) the economic value of the deceased’s normal life expectancy; and (2) an intangible element incapable of exact proof. Department of Human Resources v. Johnson, 264 Ga. App. 730, 592 S.E.2d 124 (2003). If a young person dies during a medical procedure and had a 50-year life expectancy and the person was employed at the time, the economist can project the economic damages. As regards the non-economic damages or the loss of the full value of the life of the decedent, damages are measured from the decedent’s point of view; a child’s right to recover for a parent’s death is a substitution of the child in the decedent’s place for the purposes of recovering for the injury inflicted upon the decedent. The measure of damages for the wrongful death of a parent brought by such person’s child, therefore, is not the child’s loss from the parent’s absence, but the parent’s loss from not being able to raise the child. Brock v. Wedincamp, 253 Ga. App. 275, 558 S.E.2d 836 (2002). Family members and friends can testify to what the decedent enjoyed about their life and the relationships lost.
The second component of a wrongful death claim belongs to the estate. All causes of action that would have accrued to the decedent had he or she lived must be filed in the name of the Administrator or Administratrix of the estate. These include claims for medical expenses incurred prior to death, funeral and burial expenses, conscious pain and suffering prior to death and, where appropriate, punitive damages. See O.C.G.A. § 51-4-5(b); Waldon v. Archebald Memorial Hospital, 197 Ga. App. 275, 398 S.E. 2d 271 (1990). Where separate suits are instituted under wrongful death and estate claims, a defendant is entitled to joinder of the claims, even though the measures of damages are distinct for each claim. Stenger v. Grimes, 260 Ga. 838, 400 S.E.2d 318 (1991).
If you or a loved one have been a victim of medical malpractice in Atlanta or anywhere in Georgia, it is important to contact an experienced medical malpractice attorney as soon as possible to discuss the case. If you have a matter you would like to discuss, contact one of the Georgia medical malpractice attorneys at Finch McCranie LLP at 404-658-9070 for a free consultation.