Public Health Law Map - Beta 5 - Medical and Public Health Law Site

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C. The Measure of Damages
Most civil litigation is about compensating injured individuals or corporations, or
preventing future harm through injunctive relief. The exceptions are those cases where
government agencies use civil proceedings to collect money or enforce regulations,
and divorce cases. In compensation cases, the monetary damages—the amount of
money necessary to “make the plaintiff whole”— are the engine that drives civil
litigation. If the plaintiff is personally wealthy or backed by a litigation advocacy
group such as the American Civil Liberties Union, the decision to proceed with the
case may be made on moral principle. Otherwise, without adequate damages to pay the
plaintiff’s attorney’s contingent fee and provide reasonable compensation for the
client, most plaintiffs will be unable to obtain representation.
1. Direct Economic Damages
Direct damages are the money that plaintiffs will not get or will pay out as a
consequence of their injuries. There are two classes of direct economic losses: those
that have already matured as of the time of trial and those that will mature in the
future. Although there may be disagreement over whether a past loss was
proximately caused by the injury, the amount of these matured losses may be
determined with reasonable certainty. Future losses are much more difficult to
analyze. In addition to factors unique to each type of future loss, all financial
prognostications are subject to the vagaries of the economy. Interest rates rise and
fall, wages fluctuate, and, most important, future expenses such as medical care are
difficult to estimate. Future losses also depend on projections of the plaintiff’s future
behavior. Every plaintiff’s attorney will argue that the client would have had a
meteoric rise in his or her chosen field. Every defense lawyer will argue that the
plaintiff was on an inexorable slide to financial ruin. The truth usually lies between
these extremes, giving the jury considerable latitude in arriving at an award. In
medical malpractice litigation, direct damages usually consist of lost earnings,
medical expenses, and rehabilitation and accommodation expenses.
a) Lost Earnings
Lost earnings are calculated by comparing the plaintiff’s expected income with
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