If you’ve read much of the information on this site you’ll be in no doubt about one thing: every medical negligence case is as unique as it is complex. For this reason, if anyone is willing to give you an opinion on what your claim is worth before some pretty lengthy and painstaking investigations have been carried out, you should start listening for alarm bells.
It will almost certainly be impossible to tell you at the early stages of the investigation of your case what compensation you would receive were you successful for one very simple reason: until detailed expert evidence on your long-term prognosis has been assembled, there is absolutely no way of making a rational assessment of what you will need to be paid to accommodate you for your loss.
For this reason, this post is concerned with describing the principles underlying how compensation is assessed rather than attempting the impossible (and completely disingenuous) feat of reeling off numbers based on completely superficial facts.
How compensation is assessed
The legal principle underlying the awarding of compensation to people who have been subjected to medical negligence is to attempt to put them back in the position they would have been in had they not fallen victim to the substandard care which has caused them injury.
In so many cases this is of course not possible in any truly meaningful way: no amount of money will restore a person who has had a limb amputated unnecessarily to the position they were in before that terrible event occurred.
But, while far from perfect, the law regards providing monetary compensation to victims of medical malpractice as the best practical way of doing justice in respect of the wrong that has been committed to them. In attempting to arrive at the correct figure, compensation (also referred to as ‘damages’) is broken down into two distinct categories.
General damages
General damages are intended to represent compensation for the pain, suffering, inconvenience and loss of the joy of living which the injury has already caused and will continue to cause to a victim of medical negligence for the remainder of their life.
By definition, this will mean that the amount of general damages to which a person is entitled will be peculiar to their specific circumstances. For example, if a botched operation results in continual agonising pain, a younger claimant will receive more compensation than a more senior victim to take account of the fact that, in all likelihood, the younger victim will endure this pain for a longer period if they see out their natural lifespan.
Likewise, a young person with a promising sporting career would be expected to receive greater compensation for an injury which impairs their athletic ability than would someone of a similar age who had been accustomed to living a less active life prior to the accident.
Applying the same logic, a botched medical procedure which resulted in grave facial disfigurement would be seen as imposing a much greater burden on a young single woman than it would on a married man in his senior years.
The cap on general damages
As the law of negligence developed in this country the judiciary eventually felt the need to impose an upper limit or ‘cap’ on the amount that could be awarded in general damages having regard to the unique subjective factors which had to be considered in each case and being mindful of the fact that society could be seriously adversely affected if burdensome awards in damages had to be funded by increased insurance premiums, heightened taxes, or a reduction in public services.
For this reason in the landmark 1984 case of Sinnott v. Quinnsworth Limited it was decided by the Supreme Court that the maximum award for general damages for the most catastrophic injuries imaginable was IR£150,000 (roughly €190,000).
As the country’s economic fortunes improved it was acknowledged by the courts that this figure needed to be revised upwards and this trend continued to the point when, at the height of our short-lived period of perceived opulence, it was decided in the 2009 case of Yang v. MIBI that the cap needed to be raised to €450,000 to take account of improved living standards.
However, like so many other things that have come under uncomfortable scrutiny in the last several years of recession, the cap has also been revised downwards and the general consensus is now (at the time of writing in June 2013) that it is in the region of €350,000.
For this reason it will become apparent that when you hear about those multi-million euro awards in the media, the amount which is awarded for pain and suffering and loss of enjoyment of life (no matter how terrible that is) only makes up a small fraction of the overall award. The balance is made up of what are known as ‘special damages’, which we will turn to next.
Special damages
In contrast to general damages (which, as we have seen from the previous section, attempt to put a money value on things like pain and the loss of the ability to enjoy life) special damages comprise those items which are objectively quantifiable and which require to be paid to put someone back in the same financial position as if they had never been injured in the first place.
The most common categories of special damages that are recoverable are loss of earnings (both past and future) and the cost of medical treatment necessitated by the injury suffered.
While calculating special damages is a much more scientific process than determining what the right figure to place on someone’s misery is, an injured party’s individual circumstances will nevertheless have a profound bearing on the level of damages awarded, particularly when it comes to determining the amount attributable to loss of earnings.
For example, if a world-renowned professional sports player who was accustomed to receiving a six-figure annual salary before they were maimed in a negligently performed procedure is to be given a sum of money to restore them to the position that they would have been in had the operation been carried out correctly, this will be of a completely different order of magnitude to the amount of money required to compensate someone who has suffered the same injury but who was earning the average industrial wage at the time that they underwent the procedure.
The other items of expenditure that can be recovered by way of special damages are as varied as the circumstances in each individual case, but typical examples of legitimate claims for compensation include:
- The costs of any specialist treatment (both past and future) which an injured person needs as a consequence of the injury they have sustained.
- Rehousing costs. If someone has been left wheelchair bound or paralysed by a negligent act they may not be able to continue to live in the accommodation they had prior to the injury, in which case they may be entitled to have the costs of refurbishing their existing dwelling, or if this is not practical, the costs of acquiring a new property which is necessary to accommodate their needs.
- Round-the-clock nursing care. If someone has been catastrophically injured they may require specialist nursing assistance on a continuing twenty-four-hour basis. If so, the award of special damages will include an amount calculated to pay for these nursing services into the future.
- Devices and aids. Depending on the nature of the injury, a claimant may need state-of-the art medical devices and aids and specially adapted vehicles to alleviate their suffering to the greatest extent possible. The amount of special damages awarded will also be calculated to attempt to determine a fair figure for these expenses.
It probably won’t come as a surprise to you that paying for all of these items for a person who has been catastrophically disabled at an early age, and who may live for a very significant time to come, can mount up into truly awesome figures. This is why we hear media reports of awards of several million euro being made from time to time.
Up until very recently all of these highly uncertain factors had to be taken into consideration and applied in coming up with a single lump sum in cases where a person could be expected to live for decades into the future, without anyone being able confidently to predict how their physical condition would develop (in the most profound cases, courts were asked to crystal-ball gaze for young children who were expected to live for another fifty or sixty years).
Thankfully the level of uncertainty for claimants has been reduced by the recent introduction of periodic payment orders where every few years a court again assesses the injured person’s circumstances and reviews how much is needed for them to get the care they will need to make their life as bearable as possible.
