Noneconomic Damages: What is Below the Tip of the Iceberg?

July 20th, 2017 by Rieders Travis in Medical Malpractice

Delayed Diagnosis Lawyer

If you have suffered from medical or hospital malpractice caused by negligent care, you may be entitled to collect compensation for both economic and noneconomic loss. Economic damages, sometimes called “compensatory damages,” are provided for such items as medical and hospital bills, lost income due to taking time off work, and other so-called “out-of-pocket expenses.” These damages are often referred to as the tip of the iceberg. What is below the iceberg? Noneconomic damages. These noneconomic damages will compensate you for costs that are not easy to calculate, such as pain and suffering, humiliation, disfigurement and, often most importantly, loss of life’s pleasure. These damages are different when a person dies due to negligence. Those damages are governed by Pennsylvania’s Wrongful Death and Survival Act. Spouses may also have a claim, which is called loss of consortium, society and services.

One of the reasons why you need a good and competent lawyer is that oftentimes insurance companies and others may request subrogation, also called reimbursement. There are times when amounts of money have to be repaid to insurers and government agencies. There are also times when this does not have to be done. The rules are extremely complex. The lawyer you hire needs to know what they are doing.

Economic damages may be more straightforward and easier to calculate. However, there is also the question of benefits that an employer may provide and, of course, cost of living increases. There is no noneconomic barrier as such. Pennsylvania does not have formal limits as to what can be awarded in compensatory and noneconomic damages. However, in medical liability cases, the Mcare Act does provide for remittitur and other ways to review a verdict. In a medical liability case, the burden of proof, by a preponderance of the evidence, remains on the injured patient.

Medical malpractice is highly regulated by a complex body of rules and laws. Cliff Rieders, of Rieders, Travis, Humphrey, Waters & Dohrmann, wrote THE BOOK on medical malpractice in Pennsylvania. Medical Malpractice in Pennsylvania is the book that most lawyers and judges use to educate themselves. Cliff Rieders also teaches the course annually given by the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association, and by other organizations. Cliff has spent decades honing his skills and successfully representing Pennsylvania families who have suffered injury or loss due to medical and hospital negligence. We offer a free consultation.

Remember that Cliff Rieders also has a substantial practice in pharmaceutical and medical device litigation. These are also very important areas of the law, requiring great skill and knowledge.

What is Considered Medical and Hospital Malpractice?

According to Pennsylvania law, medical malpractice occurs when a healthcare professional commits medical negligence by violating the generally accepted standard of care that other medical professionals use to treat patients suffering from a disorder or illness. The medical negligence must have directly resulted in the patient’s injuries, so you and your attorney will have to prove that the negligent act caused the damage. One of the most difficult challenges is finding appropriate expert witnesses to testify. It is rare that a treating physician will help a patient, but it does happen. Cliff Rieders has dealt with hundreds of expert witnesses over the years.

What are Noneconomic Damages?

Pennsylvania defines “noneconomic loss” as pain and suffering and other nonmonetary detriment. Noneconomic damages usually fall into the following categories:

  • Pain and suffering: The law says that people who are injured are entitled to be fairly compensated for all physical pain, mental anguish, discomfort, inconvenience, and distress suffered. Compensation is figured from the date of the injury until the date of trial, plus compensation for injuries that are expected to be suffered in the future as a result.
  • Emotional distress and trauma: Seriously injured individuals often suffer great mental anguish, stress, and anxiety, especially if they are unable to work and become dependent on others. They may suffer flashbacks and panic attacks and have other mental issues that arise from the medical malpractice.
  • Embarrassment and humiliation: Injured individuals may suffer present and/or future embarrassment and humiliation due to their reduced ability to function or because they are disfigured, incapacitated, or unable to make decisions and take independent actions due to the medical malpractice.
  • Loss of enjoyment of life: Seriously injured individuals are often deprived of the pleasure of participating in social, athletic, and volunteer activities in the community with family members and friends. They may be unable to engage in a hobby that was pleasurable or enjoy doing things with children and grandchildren. They may suffer each time they attempt to perform the basic activities of daily life due to the medical malpractice.
  • Loss of consortium and companionship: Marriages, friendships and family relationships may be destroyed if individuals can no longer engage in the give and take and responsibilities of marriage, social, and family life.

Remember, there may also be a claim for consortium, loss of society and services for the spouse. Further, in death cases damages are governed by Pennsylvania’s Wrongful Death and Survival Action. There are cases where relatives who are “bystanders,” as the law defines that, may be entitled to damages for infliction of emotional distress. That is a very difficult and problematic area of the law.

How is Compensation Determined?

Since there is no easy way to calculate a dollar amount for what noneconomic damages are worth, the amount of the settlement or verdict will be based on several factors, including:

  • the age of the injured party
  • the type and severity of the injuries or disfigurements
  • how the injury affects the individual – the extent to which they can still perform previous activities and the effects on marriage, family, and social relationships
  • whether the injury is permanent or temporary, and whether there is treatment for the problems
  • the amount and duration of the pain and suffering
  • how the loss of life’s pleasures affects the person involved on a daily basis.

Since Pennsylvania does not have caps on compensatory and non-economic damages, there is no limit on how much a court can award you for these types of damages — if you and your attorney can prove that the damages were a result of the medical malpractice. Pennsylvania does, however, under unusual circumstances, grant remittitur and may reduce a verdict. There certainly are guidelines and rules concerning appropriate damage awards and settlement amounts.

Is There a Statute of Limitations?

The statute of limitations for medical and hospital malpractice claims is two (2) years. Pennsylvania also has something called a “tolling” or “discovery rule.” Under certain circumstances, the statute of limitations may be extended from the time when a person knew or, in the exercise of reasonable diligence, should have known of the relationship between the harm and its cause. This is an extremely complex area of the law. Cliff Rieders has written about it in his book on Pennsylvania Medical Malpractice. Pennsylvania also has a 7-year statute of repose. Likewise, this is a complex issue and does not necessarily extend the statute of limitations but may close the door where the discovery rule applies. A minor has two (2) years after reaching the age of 18 to bring a medical liability action. There is a different statute of limitations for sexual assault. The statute of limitations is one of the most difficult areas of the law. It is important to act quickly and diligently.

Put Your Trust in Us, Contact Cliff Rieders for a Free Consultation

If you or a loved one has suffered losses from medical malpractice, you must act quickly. Due to the statute of limitations and the fact that medical evidence can be destroyed over time, delaying action could mean forever losing your right to seek compensation. It is essential to have a skilled and knowledgeable medical malpractice lawyer who knows the judges, the courts, and the system, especially since noneconomic damages may be difficult to prove.