Archive for November, 2010
Nothing in medical malpractice is so misunderstood as mental distress and psychological injuries. We see newspaper accounts of people who have received awards for pain and suffering or emotional distress. A sympathetic jury has decided to c
ompensate someone for their terrible and frightening ordeal, in addition to their financial loss. It is true that mental distress can bring awards, but it can also be very difficult to prove. Judges can set aside what they consider to be excessive awards for claims of mental suffering with no reasonable basis, and some states have put limits on the amounts juries can give for “pain and suffering.”
So, how do you receive adequate compensation for your pain and suffering? Just saying that you are suffering and very upset, or shedding a few tears, will not get you very far. You have to show that: you required psychiatric treatment, you lost your job, your marriage fell apart, or you suffered some other demonstrable loss.
The Rule Is: You have to show that you actually did receive a shock that would have profoundly disturbed the average juror, and you suffered some real disturbance in your personal, emotional, or business life.
Types of Emotional Distress
Personal Suffering: Because of a doctor’s malpractice, you have to undergo painful surgery or will spend the rest of your life in a wheelchair. You hurt every time you move or maybe you cannot move at all. That is usually self evident and easy to prove.
Disfigurement: This ranks with physical pain in its appeal to juries, provided it was due to a doctor’s negligence and not some other cause. But, if you have been disfigured by an accident or a disease like cancer, you will not get much sympathy, if you sue the doctor, who did his best to correct it. To make a strong case, you have to show two things:
1. You looked normal before his treatment, and your disfigurement was entirely due to the doctor’s negligence.
2. It is permanent
and cannot be completely repaired by existing surgical techniques.
Fear and Apprehension: This comes from knowing that you are in danger of death or disability because of the malpractice. A New Jersey gynecologist failed to diagnose a woman’s breast cancer in its early stages, when the chance for cure was good. When the cancer was removed by another surgeon two years later, the chance of a fatal recurrence was much greater because of the delay. The court ruled that the woman did not have to show the cancer had come back as a result of the delay or that she had actually suffered any physical harm. The court said her justifiable fear of a fatal recurrence, and the increased chance of such an outcome, justified the award against the gynecologist.
Emotional Shock: This comes from seeing someone near and dear to you seriously injured or killed. If you witness malpractice, which results in the death or serious injury of a member of your immediate family, the shock you suffer may justify a claim. In most states, you must actually witness the event, although some states will let you file a claim if you can show a genuine, emotional upset just from hearing the news. Your lawyer will have to advise you as to the exact law in your state.