As patients, we have the right to place our trust in doctors, nurses and other medical professionals to look after us by providing quality care. However, there are times when these medical professionals have caused their patients to suffer injury because of negligent medical treatment. In these cases, a patient may be eligible to file a medical negligence claim, and receive compensation for their injuries.
But how is your medical negligence compensation calculated in such circumstances? Read on to find out more what the key areas affecting a compensation payout.
Purpose of compensation
The purpose of any compensation is to put the patient back to the position they would have been in had they not received negligent medical treatment. Therefore, how much compensation is paid will vary between cases, and ultimately depends on the patient’s individual circumstances. If the patient’s medical negligence claim is successful, compensation will be paid by the medical professional’s insurer.
Types of compensation
A patient may receive compensation for:
- Past and future medical expenses
- Cost of care (domestic assistance) provided by a professional, or by friends and family
- Loss of past and future earnings
- Pain, suffering and loss of enjoyment of life
Medical Expenses
A patient will be reimbursed for past medical costs that arose because of the negligently caused injury. Medical, hospital, nursing or other similar treatment costs, plus pharmaceutical and other ancillary and incidental costs, form part of your claim.
In addition to the expenses you have incurred in the past, you are entitled to claim any reasonable treatment expenses that are likely to be incurred in the future due to your injuries and continuing disabilities
Cost of care (Domestic assistance, Gardening, Handyman etc)
Compensation for attendant care provided by friends and family (known as gratuitous care) can be awarded regardless of whether it was paid for or not. However, compensation in this area is subject to restrictions. If you have a level of disability that prevents you from performing work around the home or you require assistance with your personal and domestic care tasks, you will be able to claim compensation for the cost of care and assistance that has been provided to you in the past and the likely care and assistance that you will require in the future.
Loss of earnings
You are entitled to be compensated for actual economic loss (i.e. loss of income such as wages or salary) that you suffered in the past as a direct result of your injuries and continuing disabilities. In addition, any likely future loss of earnings as a result of your diminished earning capacity or ability to compete in the open employment market will be taken into account to assess the value of your future economic loss claim. Typically, your past economic loss is assessed by comparing your current level of income and earnings or earning potential to those at the time or before the occurrence of your injury.
However, the assessment of your future economic loss is more speculative and sometimes is determined and awarded as a lump sum figure for diminution of earning capacity (known as a “buffer” or a “cushion”). In clear cut cases, future economic loss can be calculated by reference to what you would have earned during the relevant future period.
Pain and suffering
To be eligible for pain and suffering compensation, there are injury thresholds that must be met. This threshold is measured as a percentage of a whole person impairment. The requirement is that the injury sustained must result in a permanent impairment of at least 15%. This will be assessed by medical professionals, who are under strict guidelines. Therefore only those injuries which significantly impact a person’s health status are eligible for compensation.
NSW
Consists of pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement. The maximum amount may only be awarded in the most extreme cases, such as for young people who’ve suffered catastrophic injuries including debilitating brain damage, quadriplegia and the like. If the nature of the injuries and loss do not represent something of a most extreme case, the judge is required to assess and determine the percentage which the injuries and loss do represent
Contributory negligence
A medical professional may argue a defence of contributory negligence. Contributory negligence occurs when the patient’s own negligence has contributed to the causation of their injury, due to a failure to take reasonable care for their health. For example, if a patient fails to take prescribed medication, fails to return to see their doctor when requested to or fails to inform their doctor of the true nature of their injuries, then they may be considered partly or fully at fault for their injuries. If this is the case, responsibility for the injury will be apportioned between the patient and medical professional, and compensation will be reduced accordingly.
Lump sum payouts
Compensation is most commonly paid out in a lump sum. However, sometimes inaccurate predictions about the long-term nature of the injuries can leave patients finding that this payout fails to meet their long-term needs. Therefore, it is best to seek legal advice in order to receive an appropriate compensation amount. For more information on medical negligence compensation, contact Schreuder Partners.