What are compensatory damages?
Compensatory damages "compensate" the injured person for various
kinds of losses or damages. These may also be referred to as "actual
damages." The courts do not allow lawyers to argue that the award
should be what a juror would want if he or she were to go through a similar
injury, but the instructions call for "reasonable" compensation.
What is medical malpractice?
Medical malpractice is professional negligence by act or omission by a
healthcare provider in which the care provided deviates from accepted
standards of practice in the medical community and causes injury to the
patient. Standards and regulations for medical malpractice vary by country
and jurisdiction within countries. Medical professionals are required
to maintain professional liability insurance to offset the risk and costs
of lawsuits based on medical malpractice.
How long do I have to bring suit?
The answer to this question differs by state. For example, Florida has
a two-year statute of limitations in medical negligence cases. Generally,
this means that the lawsuit must be brought within two years from the
time the patient, family member, or guardian knew or should have known
with reasonable diligence that the injury occurred with a reasonable possibility
that medical malpractice caused it.
Florida also has a "statute of repose," another harsh provision
in its civil laws. This means that – unless there is fraud, misrepresentation,
or concealment – one can never sue a healthcare provider more than
four years after the actual malpractice incident. So, even if the family
does not know or can't be expected to know, family members cannot
bring a claim four years after the incident occurs in most circumstances.
Florida has one significant exception: "Tony's Law," enacted
in 1996. For malpractice incidents that occurred after July 1, 1996, the
four-year statute of repose cannot cut off a child's malpractice claim
before the child's eighth birthday. Be careful, though. The two-year
statute can still apply to the claim if the parents or guardians knew
or should have known of the injury and the reasonable possibility that
medical malpractice caused it.
How long will my case take?
Normally, it takes one to three years to bring a case to conclusion. The
time required varies because of factors such as the number of parties
involved, the number of depositions and investigations needed, schedules
and commitments of experts, the judge, and so forth. Most of the cases
that our attorneys accept eventually settle. If the case is tried and
you obtain a favorable verdict, a defendant has an absolute right to appeal.
That appeal usually prolongs a case's conclusion by two to four years.
Although more than 80 percent of our cases settle, we find that defendants
– perhaps emboldened by "tort reform" – are growing
more willing to take cases all the way to trial.
What is a subrogation claim?
If you have been injured and incurred medical bills because of the negligence
of a healthcare provider, your medical bills may have been paid by Medicare,
Medicaid, or a group health insurance company or health maintenance organization
(HMO). If you obtain a recovery from the negligent healthcare provider
who caused your injuries, you are required by law to pay back Medicare,
Medicaid, or the group health insurance company or HMO for the bills they
paid as a result of the negligence of the defendant. These claims of Medicare,
Medicaid, or your insurance company that they should be paid back are
called "subrogation claims."
The laws and procedures dealing with Medicaid and health insurance programs
are different from state to state, and even different among insurance
companies, so you will need to check with your lawyer about the specifics
of your case. Medicare is a federal program, so no matter which state
you live in, if your bills were paid by Medicare, you will have certain
obligations to at least partially reimburse Medicare for what it paid.
Similarly, if a medical bill for services related to your injury is unpaid,
the unpaid healthcare provider may also have a subrogation claim and need
to be paid out of the recovery.
Are there caps on damages?
Some states have enacted laws to put caps or limits on the maximum amounts
that people can recover in medical malpractice or other injury cases.
Other states have no maximum amount set. Some of the state laws providing
for caps on damages are relatively new and are still being challenged
on the grounds that they are unconstitutional. Even though there may now
be a cap in your state, it may not withstand a final court challenge.
You will need to check with a lawyer in your state as to what types of
damages are recoverable and whether there are any limitations on the amounts.
On the national front, there has repeatedly been proposed legislation to
put a nationwide cap of $250,000 for intangible damages in medical malpractice
cases. This cap would be very unfair because it would not just cap frivolous
cases, which often get thrown out by the courts or overturned on appeal
anyway. The cap would mostly impact legitimate cases with severe injuries
and it would mean that the most seriously injured victims will only receive
partial compensation while the less severely injured may receive full
This cap will also discriminate against children, the elderly, and stay-at-home
moms who cannot establish the wage losses that others can, so this is
all they would get no matter how severe the injury. Most people would
agree that, for things like blindness, amputations, and the death of a
child, these caps would be terribly unfair. Many people who generally
think a cap is a good idea do not understand that the proposed cap is
the "gross" amount that may be recovered, and the actual net
to the client after deducting attorney fees and expenses may actually
be much less. Moreover, if $250,000 is the maximum exposure, insurance
companies will rarely ever settle even the most meritorious cases.
What are punitive damages?
Punitive damages are damages not awarded in order to compensate the plaintiff
but in order to reform or deter the defendant and similar persons from
pursuing a course of action such as that which damaged the plaintiff.
Punitive damages are often awarded when compensatory damages are deemed
an inadequate remedy. The court may impose them to prevent under-compensation
of plaintiffs, to allow redress for undetectable torts, and to take some
strain away from the criminal justice system; however, punitive damages
awarded under court systems that recognize them may be difficult to enforce
in jurisdictions that do not recognize them. Punitive damages awarded
to one party in a United States case would be difficult to get recognition
for in a European court, where punitive damages are most likely to be
considered to violate "ordre public."
Because they usually compensate the plaintiff in excess of the plaintiff's
provable injuries, punitive damages are awarded only in special cases
– usually under tort law when the defendant's conduct was egregiously
insidious. Punitive damages cannot generally be awarded in contract disputes.
Also, punitive damages can be in excess as compared to the compensatory
damages. There are no certain limits or ratio of punitive damages to that
of compensatory damages.
Who will decide my case?
In most states, you will have a right to a jury trial if you want one.
Your trial will be presided over by a judge, and the judge will decide
issues of law and will make rulings on what evidence the jury is entitled
to hear. The jury will decide who they think is telling the truth, what
the facts are, and the amount of damages you are entitled to recover.
What should I do if my insurance company is denying coverage or delaying payment?
You should seek legal advice immediately. Some cases are easy and quick
to handle while others may require aggressive legal actions against the
What is a class action lawsuit?
In law, a class action or a representative action is a form of lawsuit
in which a large group of people collectively bring a claim to court.
This form of collective lawsuit originated in the United States and is
still predominately a U.S. phenomenon, at least the U.S. variant of it.
In several European countries with civil law, however – as opposed
to the Anglo-American common law principle, which is used by U.S. courts
– changes have been made in recent years that allow consumer organizations
to bring claims on behalf of large groups of consumers.
What is the difference between a class action and a mass tort?
This is the most common question we are asked by our clients who are engaged
in either type of lawsuit.
A class action is a lawsuit brought by one or a few representatives of
a group who have all been harmed by the same entity or entities in substantially
the same way. Class actions you may have heard include our litigation
against Red Bull. In this instance, Red Bull had represented through advertising
that drinking its product would give you more energy and have greater
health benefits than drinking a cup of coffee. The company also sold its
product for more than a typical cup of coffee. The claims of health benefits
and greater mental acuity turned out to be false. Therefore, each person
who bought this product because they believed the advertising claims was
harmed in exactly the same way; they all paid a premium for a product
that isn't proven to be any better than a cheaper alternative. In
this type of case, it would be inefficient to gather evidence about each
individual's decision making process and so the evidence of one person's
claim is used to file a single case on behalf of a group of people. If
the lawsuit settles, members of the public who believe they are part of
the class can apply to join, and each person will be given an equal share
of the settlement.
Our firm also handles mass torts, which are very different. An example
of a mass tort litigation is one we are currently engaged in against the
manufacturers of Testosterone Replacement Therapy. In this case, several
drug manufacturers came out with Testosterone Replacement drugs and advertised
them aggressively. The companies claimed that the drugs would revitalize
their male users, would increase sex drive, and would lift mood. However,
the drugs are now also associated with serious cardiovascular side effects,
like heart attacks. There are still a group of people who were harmed
by the same claims, but in a mass tort litigation, every single person
who was harmed by has an individual case that is filed in federal court
under their name. The case is managed in essentially the same way that
a single product liability case would be, except that in the same court,
at the same time, thousands of other plaintiffs are bringing similar claims.
In the interest of efficiency, the lawyers for the plaintiffs will work
together to coordinate a strategy, schedule depositions, and make sure
that discovery is conducted thoroughly. A mass tort is just a way to manage
a large number of similar cases, while still ultimately making all major
decisions based on the merits of each person's case. If the case settles,
the defendants might offer a 'group settlement', but that just
means that they have added up what each person's claim is worth and
want to pay it all at the same time. Money is then allocated to each person
based on how severe their injuries are and how well documented their treatment.
So even though the cases are being managed together, it does not mean
that a plaintiff who had a heart attack will get the same settlement as
a plaintiff who had chest pain, which is what people fear. In general,
a class action is an inappropriate way to pursue claims in areas where
outcomes can vary widely, so anything involving medical treatment is generally
better suited to being managed as a mass tort.
In sum, the outcomes vary within a mass tort based on the merit of the
claim, whereas in a class action, each plaintiff is awarded the same amount of money.
How frequently should I call for a status update on my case?
Lawsuits move at different speeds, and often there are periods of inactivity
because of crowded court dockets. We strive to keep our clients informed
of the progress of their case. If there is a major development in your
case, you can expect us to contact you.
Please tell us right away if you have a significant change in medical
status, or a change of address or phone number.
What is product liability?
A product liability claim is usually based on one or more of the following
causes of action: design defect, manufacturing defect, a failure to warn.
The claims may succeed even when products were used incorrectly by the
consumer, as long as the incorrect use was foreseeable by the manufacturer
or other party in the "supply chain."
In general, product liability claims are based not on negligence but rather
on strict liability. Under the theory of strict liability, a manufacturer
is held liable regardless of whether it acted negligently. This theory
allows recovery for an injured customer who might be in a difficult position
to prove what a manufacturer did or did not do wrong in its design or
manufacturing process. It is presumed that a manufacturer with its deep
pockets may be better situated to absorb the cost of liability and would
consider such expense in setting prices for its products.
Some legal commentators consider claims of failure to warn to be based
on negligence. A basic negligence claim consists of proof of a duty owed,
a breach of that duty, an injury, and that the breach proximately caused
the plaintiff's injury.
Over time, negligence concepts have arisen to deal with certain specific
situations, including negligence per se – using a manufacturer's
violation of a law or regulation in place of proof of a duty and a breach
– and res ipsa loquitur, an inference of negligence under certain
Why should I agree to settle my case?
In many instances, it may be advisable to settle the case before it goes
to trial. While some injury victims are reluctant to consider a settlement
offer from the defendant, refusal to do so may cost you in time, effort,
and frustration, not to mention the possibility of losing the case at
trial and receiving nothing! This is not to suggest that you accept an
unreasonable offer, but please listen to your lawyer's advice regarding
settlement. Your lawyer is trained and experienced in dealing with personal
injury defendants. He or she is familiar with the defendant's lawyer's
tactics. You should take advantage of this knowledge and consider his
or her recommendation. The final decision is, however, yours to make,
and your lawyer will respect your choice and work as hard as ever to see
the case through to a successful conclusion.
Some important matters to keep in mind when considering a settlement offer
from the defendant: Settlement negotiations can begin as early as the
filing of the pleadings and may not conclude until minutes before the
start of trial. Negotiating a settlement is an art; therefore, it is important
that you control your emotions when dealing with the defendant and the
You may be asked to sign a document associated with the settlement agreeing
to drop all further legal actions involving the defendant and the incident
in dispute. This "release" or "waiver" is a typical
component of the settlement.
What is a tort?
When someone or something causes an injury to another person or thing,
the legal profession calls such an act a "tort." A tort is committed
when one person is harmed because of the wrongful act of another. The
purpose of tort law is to assign responsibility to the individual, group,
or company responsible for causing such harm. The term "personal
injury" encompasses a wide variety of circumstances ranging from
a stubbed toe, to an amputated limb, to death, and everything and anything