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Medical Malpractice Law & StrategyLJN NewslettersNewsSections

Should You Take the Case?

By Jerome M. Staller, Ph.D.
August 27, 2003

As the federal government and more and more states move toward capping non-economic damages in medical-malpractice actions, actual economic damages take on a new importance: Will economic damages by themselves, absent a large award for pain and suffering, justify taking a case that may cost $100,000 or more to present? A clear understanding of the basics of economic damages, and an understanding of how some apparently high-damages claims might not be all that worthwhile will help in making this decision. From the defense perspective, intelligent analysis of economic-damages claims may prove to be more effective than caps in reining in supposedly runaway verdicts.

The basic measure of economic damages is the plaintiff's economic status and capacity before the tort minus the plaintiff's economic status and capacity after the tort. The major elements of economic loss in most medical-malpractice matters are lost earnings and medical costs. In wrongful-death matters in most jurisdictions, the decedent's likely personal maintenance expenditures (personal living expenses, exclusive of what would have been saved or spent on family support) are deducted from damages.

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