November 07, 2011

Question: A female patient who smokes suffered a cerebrovascular accident while taking an oral contraceptive. She successfully sued the doctor for failure to warn her about the risks associated with taking oral contraceptives and smoking. However, her neurological deficits would have been less disabling had she been compliant with intensive speech and physical therapy. In a claim for damages, which of the following is most accurate?

By Dr. Siang Yong Tan

A. She is entitled to compensatory damages, that is, lost wages, medical expenses, pain and suffering, and hedonic damages.

B. By virtue of being a smoker, she is contributorily negligent, which can reduce or extinguish altogether any monetary award.

C. If the stroke had been fatal, her estate but not her dependants can claim damages on her behalf.

D. Compensatory damages will be unaffected, despite her noncompliance with rehabilitative care.

E. The twin reasons for compensatory damages are to make the victim "whole" and to punish the tortfeasor.

Answer: A. Since the plaintiff was not warned of the stroke risk of oral contraceptives or the heightened risk in smokers, it is unlikely she will be found to be contributorily negligent. A victim is required to mitigate his or her losses, and the medical noncompliance in this case will likely lead to a reduction in her award. In the case of a deceased patient, both the estate and the dependents can separately file a lawsuit, known as survival action and wrongful death action respectively. Choice A is best as it correctly describes compensatory damages, which are meant to return the victim to the preaccident status, but are not meant to be punitive.

In a tort action, "damages" refer to the money awarded to the injured plaintiff. It should be distinguished from the word "damage," which is a synonym for injury. Malpractice damages are of two sorts, compensatory damages and punitive damages (the latter will be discussed in a subsequent column). Compensatory damages can be further divided into two categories: Special, economic or pecuniary damages, including lost wages, medical expenses, out-of-pocket expenses, and other incidental expenses; and general, noneconomic, or nonpecuniary damages, which provide payments for pain and suffering, loss of consortium (loss of love, affection, society, sex, and household services), and lost or reduced enjoyment of life. This last item, called hedonic damages, is basically an expression of the dollar value of a life, determined by economists to be quantifiable at $1.5 million to $3.5 million, but as high as $8 million.

Damages for pain and suffering often contribute to "runaway" jury verdicts. One indignant observer has written: "In making arguments for pain and suffering awards, both sides attempt to win the jurors’ sympathies with highly emotional evidence. A blind plaintiff will receive careful instruction to come to court with his seeing-eye dog, and to dab at his eyes with a handkerchief." Tort reform proposals regularly aim to cap these awards in the $250,000 range, such as California’s Medical Injury Compensation Reform Act. Some of these state statutes, including California’s, have survived constitutional challenge, whereas others, such as the recent Illinois reform statute, have not (Lebron v. Gottlieb Memorial Hospital).

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