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Weighing your probable damages award against the costs of litigation

In our last couple posts, we’ve been speaking about the elements of medical malpractice claims, focusing particularly on the harm element, which can be said to tie together the other elements, at least in claims which have merit. The same could also, though, be said of damages, which are intimately connected to the harm element.

We left off discussing how, in addition to the merits of a medical malpractice case, the probable damages award in a case should be carefully considered. Medical malpractice litigation is not cheap, and injured patients need to have an honest conversation with their attorney about the costs and benefits of pursuing a case.

There are number of ways this issue could be considered, but one way is to look at how compensatory damages work. For example, if an injured patient doesn’t work in a high-paying position or profession, lost wages will be lower than they will for an individual who works in a high-paying line of work. In fact, it is conceivable that damages could be greater for a rich plaintiff with a moderate injury than for a poor plaintiff with a serious injury, which would make their case more viable from a practical standpoint. Also, depending on the specific consequences of the medical error on the patient in question, future medical expenses may or may not be significant, even if the error was egregious. In some ways, this is unfair, but it is also just the nature of how compensatory damages work. The possibility of punitive damages must also be considered, but such damages are not easy to come by.

The point we’re trying to make is that the extent of damages in the case can impact recovery and needs to be properly weighed against the costs of litigation. There are other factors that should be considered as well, such as the likelihood and possible outcome of a settlement, how well the case would perform before a jury and the strength of the evidence in favor of the medical professional.

All of these matters are best evaluated by an experienced attorney, and individuals contemplating medical malpractice litigation should be sure to retain such an attorney to protect their rights and advocate their interests.

Source:, “Michigan Law and Practice; Chapter 6: Health Care Malpractice,” Heidi L. Salter-Ferris, Accessed Dec. 5, 2014.

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