There are several types of damages allowed to be recovered by successful patients in a medical malpractice case. These damages can be broken down into two main categories: (i) General damages, and (ii) Special damages.
General damages are those damages which are non pecuniary or do not represent out of pocket expenses. Pain and suffering, mental anguish, disability, disfigurement, scarring and loss of love and affection represent the major areas of general damages. Although Louisiana law allows the recovery of these items of damages, it places a ceiling or cap on the damages of $500,000 in medical malpractice cases.
This means that even if the patient proves to a judge or jury that he has endured pain and suffering and mental anguish worth millions of dollars, any award rendered by a judge or jury must be reduced to $500,000 plus interest.
Special damages include pecuniary or out of pocket losses like past medical expenses, future medical expenses, past lost wages, future lost wages, and custodial care. With the exception of past and future medical expenses, the $500,000 cap also covers lost wages. That means that if a patient will suffer millions of dollars in mental anguish and millions of dollars in actual past and future lost wages, the most he can recover is $500,000 plus his medical expenses.
Obviously, if the past and future wage claim is high, a patient could get nothing for his pain and suffering or vice versa if the pain and suffering is high and no recovery is made for the lost wages.
The Louisiana Medical Malpractice Act handles the recovery of future medical expenses differently that they are handled in a normal personal injury case. In a normal case, the plaintiff puts on evidence of his expected future medical expenses and the jury will make a lump sum award for what they feel the plaintiff's future medical expense will be. The plaintiff then collects that lump sum (as well as his other damages) from the defendant.
In medical malpractice cases, the jury decides whether the patient is in need of future medical expenses, but those future medical expenses are paid by the PCF as they are incurred, not in a lump sum.
The obvious advantage of payment in a lump sum is the ability to invest the lump sum or create a medical trust fund to make sure that good care is provided to the patient for the rest of his life. Moreover, if the plaintiff dies after being awarded those monies in a lump sum, his heirs will inherit that money. If a patient dies after a verdict in a medical malpractice case, the PCF simply stops paying for the medical care and the heirs do not inherit it.
