In our last post, we mentioned a recent medical malpractice case initiated by a Jackson woman who won a $1.3 million award which was deemed excessive by the physician she sued. As we noted, $500,000 of the award was for pain, suffering, scarring and disfigurement, as well as mental/emotional distress, all of which are considered non-economic damages.
As we noted last time, the ordinary cap on noneconomic damages in Michigan is $500,000 when the exceptions mentioned last time apply. Another exception is cases where a plaintiff has suffered permanent loss of or damage to a reproductive organ resulting in the inability to procreate.
Proving non-economic damages is different than proving damages such as lost wages, loss of earning capacity, and medical costs in that determining specific figures for non-economic damages is more subjective. How exactly do you quantify pain and suffering, loss of enjoyment of life, and loss of consortium? The jury must be allowed to consider all the evidence and assign an award they determine to be appropriate, but different juries can come up with different outcomes.
Maximizing a plaintiff’s non-economic damages award in medical malpractice cases involves providing enough detail about the impact of the accident on the plaintiff’s life, including his or her mental and emotional reaction to all these changes, so that the jury makes an emotional connection with the plaintiff’s situation. It doesn’t mean painting a false picture to manipulate the emotions of jurors, but simply giving them the opportunity to understand the plaintiff’s suffering and assign an appropriate award.
Building a strong case, of course, requires an advocate who not only understands the technicalities of building a case for damages, but also how to appeal to the humanity of the jurors and who can ensure the jury has adequate instruction to ensure a fair award.