The short answer is yes, you can sue. The long answer requires a little bit of discussion about medical malpractice in general. First off, if you have a personal injury case because a hospital or doctor or other health care provider was negligent in your treatment, it is called medical malpractice. Medical malpractice describes a scenario where the health provider did not provide treatment consistent with acceptable and customary practices of medicine. There are four requirements to a successful medical malpractice claim:
• The doctor or health care provider was responsible for treating you;
• They did not provide the required treatment or provided incorrect treatment;
• You were injured; or
• Your injury was caused by the failure of the health care provider to provide the required treatment
If you can prove these requisite elements, and show that you have been injured, you are entitled to damages.
Damages are awarded in the form of money to compensate the injured person for the injuries caused by the malpractice. There are two types of damages to which you may be entitled. First, economic damages, which are usually easily calculated, and include such losses as medical bills, costs of medicine, lost wages, etc. Then there are non-economic damages, which are more difficult to quantify. They include mainly damages for inconvenience, and pain and suffering.
Once you can establish that you have a medical malpractice case and can prove your economic losses, whether or not you will be able to recover non-economic damages will depend on where you are in the country. The medical community has been pushing for limitations on awards for pain and suffering due to what it claims is the high cost of malpractice insurance and the difficulty physicians have in obtaining it. Many states have already limited these awards or are about to.
A Colorado senate bill to raise the cap on non-economic damages from $300,000 to $450,000 died in the state's house of representatives in April 2008. A few months later, a Georgia trial court found the state's $350,000 award limit unconstitutional, while an Illinois court the previous November found that state's $500,000 limit impermissible. Beginning July 1, 2008, Virginia's economic and non-economic damages for medical malpractice capped at $2 million total.
Here’s an example with two scenarios, one in a state with unlimited non-economic damages, and the same claim in a state where such damages are limited. Suppose you, as the injured party, have the following economic damages as a result of your having been given the wrong medication:
Medical Bills: $ 75,000
Future Medical bills: $ 20,000
Prescription Medications: $ 1,500
Future Medications: $ 900
Lost Wages: $ 5,000
_______________________
Total Economic Damages: $102,400
Assume you can prove that your pain and suffering was substantial, and lasted for a significant period of time. There is no permanent injury. All other things being equal, and looking to similar cases and their awards, in a state where the non-economic damages are limited to $250,000, your award would likely be in the range of $200,000 to $250,000. If you are in a state where the non-economic damages are unlimited, your award would likely be more in the range of $275,000 to $400,000 on average.
Please note that these numbers are based on fictitious facts and figures. Many other factors regarding how your life was affected by this loss, the quality of your testimony and what city or county you live in, to name a few, would determine at what end of the range your case would be resolved. Your individual case may vary from this substantially. For information on how to value your specific claim, and to find out if your state has a cap on medical malpractice non-economic damages for pain and suffering, contact an attorney in your area who is well-versed in medical malpractice law.