If you believe that you or a loved one is a victim of medical malpractice and you are considering filing a lawsuit, it’s important to know about the compensation cap that applies to non-economic damages related to your injury.
Non-economic damages, oddly named “general damages”, refer to emotional pain and suffering that is not as easy to quantify as specific economic harm like lost wages, medical bills, ongoing medical care, etc. Examples of pain and suffering include depression, negative effects of pain medications, loss of enjoyment of life, long-term scarring, and other emotional factors that are difficult to put a price on. In fact, the impossibility of objectively evaluating pain and suffering is basically what led to many states, including our Old Line State, to put a cap on this kind of damage.
What is Medical Malpractice?
The legal definition of medical malpractice is basically the same across most states:When a healthcare provider fails to use the same skill and care that a reasonably competent health care provider, engaged in a similar practice, would have used in the same or similar circumstances, and if that failure caused actual harm to the patient, the patient has a claim for medical malpractice.
Confusing, right? More info here.
How to calculate the cap
As of 2016, the Maryland cap on pain and suffering compensation outlined below applies to any malpractice claim arising from the same medical injury, regardless of the number of defendants (hospital, doctor, or other licensed health care provider), claimants, or beneficiaries. (Code of Maryland section 3-2A-09)
- For medical malpractice lawsuits filed in 2016, the cap on non-economic damages is $770,000
- For lawsuits filed in 2017, the cap is $785,000
- For lawsuits filed in 2018, the cap is $800,000
- Add $15,000 per year for lawsuits filed beyond 2018
- For medical malpractice lawsuits filed prior to 2016, subtract $15,000 for each year (so the cap is $755,000 for 2015 cases, $740,000 for 2014 cases, and so on)
Wrongful death cases: There is a different cap formula for Maryland medical malpractice cases involving wrongful death, where there are two or more “claimants or beneficiaries”. Total non-economic damages for all actions cannot exceed 125% of that year’s cap, regardless of the number of claims, claimants, plaintiffs, beneficiaries, or defendants.
Time limits: Maryland’s time limits for how long you can wait to file a claim are based on the date of injury and on the date of discovery, whichever is shorter. For medical malpractice, you have 5 years from the injury or 3 years from the date you discover the injury. Additionally, the time limits change if:
- You are under 11;
- You are under 16 and the injury you suffered was to your reproductive system; or
- The injury was caused by a foreign object that was determined negligently left in your body.
How to maximize the settlement for your pain and suffering
Putting a cap on your pain and suffering doesn’t seem fair, no argument here. There are some key things to consider to derive the maximum compensation you deserve for this difficult-to-quantify category.
- Current and future pain and suffering: Which category do you fall into? If your suffering subsided upon completion of treatment, your demand will be lower. If your pain continues into the foreseeable future, your demand will be higher.
- Document everything: Gathering the appropriate medical records is essential to putting together a strong case. This applies to both economic and emotional damages. The moment you think you have been the victim of medical negligence, you should:
- Document what the medical providers are telling you
- Keep track of the names of the people you speak with
- Keep track of the dates on which these conversations occurred
- Keep a journal of how you feel – physically and emotionally – each day
- Most importantly, take photographs of your injury
- Justifying your demand amount: Experienced attorneys will use persuasive arguments to raise pain and suffering amounts, usually based on a combination of previous jury verdicts for similar cases, and a calculation called the multiple method. This method takes the total amount of your economic damages (medical costs) and multiplies it by
1–5 times. The multiple can be raised or lowered depending on a number of factors, including the seriousness of your injuries, the severity and duration of your pain, and the impact of your injuries on your day-to-day-life.
How to get a multiplier higher than 5?
Serious injury cases related to medical malpractice will often warrant a multiplier of up to ten times your economic damages, based on factors backed by strong evidence like:
- The medical provider was clearly at fault
- Your injuries must be obvious, and irreparable or require major treatment such as surgery
- Your recovery is prolonged (i.e., 6 months or more)
- You suffer permanent consequences that are medically documented (scarring, immobility, discomfort, sleeplessness, etc.)
- Your physicians must document that you will have recurring, degenerative, or future problems as a result of the injuries
Experienced medical malpractice attorneys will help ensure that your claim truly fits a high multiplier profile before you begin thinking of a multiplier of more than four or five times your medical costs. Arguing for a higher multiplier without a strong argument could prolong or damage your case.
We Can Help
Recovering damages for your medical injury can be overwhelming to say the least. Rather than taking on this Herculean task yourself, speak to an experienced Maryland attorney who can help you sort through all of the criteria, caps and complexities.
If you or someone you love has suffered an unintended medical result, you may have a claim for medical malpractice. Contact our expert team of Maryland medical malpractice lawyers for a careful review of your case.