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What Damages Can Be Recovered For Medical Malpractice?

You can recover your actual economic losses such as the costs of reasonable and necessary medical care, rehabilitative services, costs of domestic services, and loss of earnings. The law allows compensation for future medical and care expenses that the claimant can prove will be reasonably necessary to treat the injury caused by the malpractice. The claim may include income the claimant can prove will probably be lost in the future because of the injuries. Loss of earning capacity is also allowed when the patient proves he or she is less able to earn a living as a result of the injuries caused by the malpractice.

You are also entitled to non­economic damages for physical pain and suffering, mental and emotional suffering, inconvenience, physical impairment, disfigurement, loss of enjoyment of life, etc. There is no definite standard of calculating reasonable compensation for these types of damages other than being just and reasonable in light of the evidence.

In certain instances, damages may be awarded to families of injured claimants for loss of care, companionship, love and affection. Family members can be compensated for the wrongful death of a loved one. These damages may include medical and burial expenses, loss of income that would have supported the family members, emotional suffering, and loss of the pleasures of the family relationship.

Punitive damages are intended to punish a defendant and may only be awarded if it is found the injury was maliciously intended or the result of willful or wanton misconduct by the health care provider.

Generally, there is no cap limiting the amount of damages you can recover in a medical malpractice case. An exception is, when a public entity is not immune, damages are capped at $300,000, unless the entity purchased liability insurance coverage in a greater amount. If you were partially at fault for the accident, the amount of damages will be reduced proportionately. Benefits received from collateral sources will be used to reduce your recoverable economic damages. Any settlement will be reduced if there appears to be a good chance that the claim will not be successful. Other factors that may reduce the damages include past medical history, pre­existing injuries, and prior claims history.

Other Delaware Medical Malpractice FAQs

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