How To Sue a Doctor for Pain and Suffering
To recover compensation for pain and suffering from a doctor, you’ll need to prove the four elements of medical malpractice and provide evidence to support your pain and suffering damages. You can submit a claim for pain and suffering and other damages with the doctor’s medical malpractice insurance company and file a lawsuit if you don’t get a fair settlement. Pain and suffering have a significant impact on a medical malpractice victim. Therefore, you should hold a doctor accountable for the pain and suffering he or she has caused. Read on to get helpful information if you want to successfully sue a doctor for pain and suffering.
What Is Pain and Suffering?
Pain and suffering refer to the physical and mental suffering stemming from an injury. Because of the actual effects of pain and suffering on injury victims, they are part of the damages plaintiffs can recover from defendants, such as a negligent doctor in a medical malpractice case. They’re considered non-economic damages because they lack a specific, identifiable dollar value.
Pain and suffering can be physical, such as discomfort, chronic pain, or muscle injury that results from a medical error. Mental and emotional pain is the non-physical suffering you endure from an incident. Emotional distress, embarrassment, depression, loss of enjoyment of life, and loss of consortium are some examples of mental and emotional pain.
How to Sue a Doctor for Pain and Suffering
If you suffer an injury because of a doctor’s negligence, you may seek compensation for pain and suffering and other losses by filing a claim with the doctor’s insurance company. If you are unable to secure a fair settlement through the claim, you can file a lawsuit against the doctor.
There must be evidence of medical malpractice for you to successfully sue a doctor for pain and suffering. The legal concepts of liability, causation and damages apply to medical malpractice. These four elements must be present to establish medical malpractice:
- A doctor-patient relationship: You must prove that a direct relationship existed between you and the doctor you’re suing. To this end, you will show the doctor had agreed to serve as your medical provider when the medical malpractice occurred.
- Some form of negligence: You’ll need to show that the doctor acted negligently. Negligence refers to acts of omission, recklessness, or carelessness. Misdiagnosis or delayed diagnosis, surgical errors, failure to obtain your medical history and medication errors are some common forms of medical negligence.
- Negligence resulting in injury: You can’t sue a doctor if you weren’t injured. You must demonstrate a direct link between the doctor’s negligence and your injury.
- Injury-related damages: Your injury must have led to damages, such as pain and suffering, additional medical bills, and lost wages.
There are several other considerations you should make when suing a doctor for pain and suffering.
Statute of Limitations
The statute of limitations answers the question, “how long do you have to sue for medical malpractice?” You can only successfully sue a doctor for pain and suffering if you file a lawsuit before the statute of limitations for filing medical malpractice lawsuits has expired.
In Illinois, the statute of limitations for medical malpractice claims is two years from when you discovered or reasonably should have discovered the injury resulting from medical malpractice. That means you must file a medical malpractice lawsuit within two years of the date when you discovered or reasonably should have discovered your injury. You cannot bring a medical malpractice lawsuit more than four years after the date when the medical error that caused your injury occurred.
In cases where the medical malpractice victims are under 18, lawsuits can be filed by or on their behalf within eight years after the medical malpractice occurred. However, you must file a lawsuit before the injured child turns 22.
Affidavit of Merit
In Illinois, you must provide an affidavit or merit if you wish to file a medical malpractice claim in court. The document declares that you or your medical malpractice attorney has consulted a qualified healthcare professional who has reviewed your case and found your claim to be reasonable and have merit.
If you’re unable to consult with a medical professional before filing the medical malpractice lawsuit, you should do so within 90 days of filing the lawsuit.
Statutory Damage Caps
Some states place limits on the pain and suffering damages you can receive in medical malpractice cases. There’s no cap on the amount of compensation you can recover for pain and suffering in Illinois.
For several years, Illinois had a cap on the amount of non-economic damages you could recover through medical malpractice claims. You could only claim up to $500,000 in non-economic damages against negligent doctors and $1 million in claims against healthcare facilities like hospitals.
The damage caps ended in 2010 after the Illinois Supreme Court declared them unconstitutional. As a result, Chicago medical malpractice lawyers can now help victims receive the full value of their economic and pain and suffering damages.
Proving Pain and Suffering in a Medical Malpractice Case
Besides establishing you were under a doctor’s care, and the doctor failed to provide the right care, leading to the harm you suffered, you’ll also need to provide relevant evidence to back your claim for pain and suffering. Simply stating you endured a lot of pain or are suffering is often not enough.
Economic damages are tangible, hence relatively easier to prove than pain and suffering. Certain types of evidence can help you convey and substantiate the pain and suffering you endured due to medical malpractice.
Proper documentation can help you show your pain and suffering. A doctor’s notes and written opinions regarding the nature and extent of the injury resulting from medical malpractice can help determine the effect of your condition on your daily life. Documentation from therapists and psychologists, such as reviews, recommendations, and payment records, can serve as evidence of you having experienced mental health conditions like anxiety and depression.
Permanent loss of function or impairment usually causes emotional stress. Loss of consortium is usually awarded if injuries are severe and permanent. Therefore, you should provide any documentation of disabling, permanent, or life-threatening conditions. Documentation regarding rehabilitation you’ve attended after the injury and a listing of the medications prescribed, and their side effects, can also indicate the pain and suffering you’ve endured.
Testimony From Experts
Medical malpractice lawyers usually enlist the help of qualified medical experts to testify about a victim’s pain and suffering. An expert experienced in the relevant practice area and treatment of your injury can explain how the medical malpractice that occurred affected your quality of life and emotional well-being.
A qualified expert can testify with reasonable certainty about the degree of pain that a patient with your type of injury may have experienced in the past and how long the pain may have lasted. He or she will also establish your current and future pain and the therapy and medication you may need. Such testimony is crucial in helping a judge or jury understand your pain and suffering.
Testimony From Family and Friends
Pain and suffering can affect all aspects of your life. When evaluating pain and suffering damages, juries consider the loss of one’s ability to enjoy life’s pleasures. That requires proof of what you enjoyed and did before the medical malpractice occurred. Testimony from friends and family can help paint the picture of a medical injury’s impact on your quality of life.
Your family and colleagues can testify about how you were busy before but have had to work less after the injury. Family members and neighbors can testify about the activities you engaged in, such as gardening, but no longer do due to the medical injury. Your family can also tell the jury about your injury’s psychological effects, such as mood swings, personality changes, and constant worries about medical expenses or lose your job.
The testimony from your family can show how your injury has irrevocably altered your parent-child or spousal relationship, which is an important consideration in the awarding of loss of consortium damages.
Demonstrative evidence is an excellent tool for proving pain and suffering. This type of evidence demonstrates the testimony a witness is giving. X-rays, photos, videotapes, home movies, models, drawings, diagrams, and simulations are some examples of demonstrative evidence.
X-rays and other imaging test results can show where you were injured and the resulting complications, which would help explain the type of physical pain you experienced and convince the jury to award you pain and suffering compensation. Pictures and videos can help prove what your life was like before and what you now have to endure after the doctor’s negligence caused your injury.
Calculating Pain and Suffering
There’s no standardized way to calculate pain and suffering damages. As a result, damages are usually subjective and can vary greatly from one case to another. Some factors that an insurance adjuster or jury may use to assign a value to your pain and suffering include:
- Nature of your injury
- Any permanent disfigurement, impairment, or loss of function suffered
- The impact of an injury on your daily life
- The effect on your career or job performance
- Loss of ability to engage in leisure activities
Generally, the more serious the injury suffered, the higher the potential value of pain and suffering damages. Your medical malpractice lawyer will help you establish whether your case meets the basic requirements for medical malpractice claims and seek out evidence to prove the extent of your pain and suffering if you choose to sue a doctor for pain and suffering.