Medical Malpractice

Can You Sue a Doctor for Pain and Suffering?

February 3, 2021

Table Of Contents

Alan L. Fuchsberg

The simple answer is yes. A physician may be sued for pain and suffering and other damages. Such a lawsuit typically arises in a medical negligence case, also known as a medical malpractice action, discussed below.

When a doctor, hospital, or other healthcare provider commits a medical error, you experience more than physical and mental trauma. The effects of your injuries ripple through your life, disrupting your routine and causing misery.

A back injury could prevent you from playing with your children. PTSD might cause you to fear hospitals. An anesthesia error might put you into a coma, causing you to miss significant events in your loved ones' lives. The pain and suffering medical malpractice causes can significantly diminish your quality of life.

What Is Considered Pain and Suffering in Medical Malpractice?

Physical pain and mental anguish erode your mental and physical well-being. Pain and suffering damages compensate you for the diminishment in your quality of life.

Contrary to what medical malpractice insurers tell you, these damages are not awarded to pad your compensation. In fact, some states call them "general damages" because the law presumes every injured victim has them. As a result, plaintiffs do not need to prove specific instances of suffering. Instead, they only prove they were injured, and the jury awards these damages based on the injury.

Other Damages that Can Be Compensated in a Medical Malpractice Case

Damages fall into two categories. Economic damages cover all of your financial losses due to your injury. Non-economic damages cover your pain and suffering losses. In most cases, injured patients are awarded both types of damages. The other damages you can pursue in medical malpractice claims will depend on the outcome of the injury.

Wrongful Death

If medical malpractice was a substantial factor in causing the patient to die, a lawsuit would include a cause of action for “wrongful death”. The patient’s conscious pain and suffering and the other damages described above would be part of such a lawsuit. A wrongful death lawsuit would also include damages for loss of any economic support sustained by the deceased’s family as a result of the death, and loss of parental and, if applicable, grandparental guidance to the deceased’s children or grandchildren. In New York, the courts have recognized a loss of guidance claim even though the children or grandchildren have reached adulthood. Unlike some other states, New York does not recognize grief due to the patient’s death as an element of damage.

Other Elements of Damages

Other damages you might pursue include:

  • Lost past and future earnings if the patient was employed prior to the malpractice
  • Compensation for the patient’s out-of-pocket expenses for medical, hospital, medication, and related treatment not otherwise paid or recompensed by the patient’s health insurance.
  • If the patient was married at the time of the malpractice, the spouse has a claim for loss of spousal services that may be asserted in the action, including conjugal rights.
  • Diminished earning capacity for disabilities that affect the patient's ability to work.

Patients pursue these damages in the same medical malpractice cases through which they pursue pain and suffering damages.

Are Doctors Liable for Pain and Suffering?

A doctor, dentist, or any other healthcare provider is liable for pain and suffering when they commit medical negligence. These professional lapses happen when medical professionals fail to meet the professional standard of medical care. This usually means the provider has committed negligence by failing to provide reasonable care under the circumstances and, as a result, causing the patient's injuries.

Reasons to Sue a Doctor or a Hospital for Pain and Suffering

A medical malpractice suit is generally filed due to these three medical mistakes:

Diagnosis Errors

These errors happen when medical professionals are careless in diagnosing your condition. They include:

  • Wrong diagnosis
  • Delayed diagnosis
  • Failure to diagnose

Diagnosis errors cause doctors to treat you for the wrong condition.

Treatment Errors

Treatment errors include:

These mistakes happen when a doctor provides treatment carelessly or without skill.

Communication Errors

When doctors, nurses, or hospitals fail to communicate with patients, there is a communication error. For example, suppose that a hospital fails to supervise its nurses. As a result, a nurse administers an overdose of medication. There may be a case for both hospital negligence and nursing malpractice.

How to Sue a Doctor for Pain and Suffering

You can sue if a doctor committed medical malpractice. If you win, you receive compensation for your pain and suffering.

Sue a Doctor

1. Find Out Whether Your Doctor Committed Malpractice

Unwanted outcomes, unsuccessful treatments, and harmful side effects do not necessarily amount to medical malpractice. To prove malpractice, you must show your injuries resulted from medical negligence. You should meet with an experienced medical malpractice lawyer to discuss whether your doctor failed to meet the professional standard of medical care.

2. Check Your Deadlines

Every state imposes a statute of limitations on lawsuits. In New York, the statute of limitations for medical negligence claims is two years and six months after the treatment that caused the injury. But you should talk to a lawyer about your deadline because the statute includes several exceptions.

3. Identify Negligent Parties to Sue

You can sue anyone who contributed to your injury, but you must explain their roles. Thus, you could sue a doctor for a harmful surgery and a hospital for negligently hiring the doctor. But if you want to sue your anesthesiologist, you must explain how they contributed to the error.

4. Comply with Any Screening Requirements

Some states require malpractice cases to go before a medical screening board to eliminate frivolous cases. New York does not have a screening board. But in most cases, you must have a doctor review your case and issue a Certificate of Merit before you can file a lawsuit.

5. File an Insurance Claim

Unless you are facing a deadline, you will likely start by filing a claim with the doctor's insurance company. You will document your case with copies of your medical records and try to negotiate a settlement. If the insurer will not offer fair compensation, you will then sue the provider.

6. Prepare and File Pleadings

Lawsuits start with a complaint. The complaint notifies the healthcare provider and their insurer of the lawsuit. It explains the basis of your claim and the damages you seek. The complaint must be served on the healthcare provider.

7. Hire Medical Malpractice Lawyers

You should take this step very early in your case. In many situations, you only get one chance to pursue a claim. By hiring a medical malpractice lawyer, you can make the most of your insurance claim and lawsuit.

8. Present Your Case to a Jury

Winning a medical negligence case will take time. You will probably need expert witnesses to explain your injuries and demonstrate how your doctor's actions caused them. You will also need to prove your financial losses, like medical bills and lost wages, and show the pain and suffering you experienced.

How Do You Prove Pain and Suffering in a Medical Malpractice Case?

To win a medical malpractice lawsuit, you must prove liability and the damages you suffered. To prove liability, you must show the doctor was negligent. Negligence has four elements:

  1. You had a doctor-patient relationship that imposed a duty of care on the doctor
  2. The doctor breached the duty of care by failing to meet the professional standard of care
  3. You suffered an injury
  4. The breach caused your injury by falling in the sequence of events that led to your injury

After you prove liability, you must prove damages. You prove economic damages with receipts and other financial records. You prove pain and suffering losses by testifying about the severity of your injuries and how they affected your life.

How to Calculate the Compensation for Pain and Suffering Damage

You do not need to prove the amount of your non-economic damages. By definition, these damages do not have a dollar value. Instead, you will ask a jury to award a fair amount based on:

  • The severity of your injuries, including any disfigurement or dismemberment
  • The duration of any temporary or permanent disabilities
  • The impact of the injuries on your life

To assist the jury, you may have an expert testify about the methods used to award pain and suffering damages: the per diem and multiplier methods.

With the per diem method, the jury places a daily value on your pain and suffering and multiplies it by the number of days your injuries lasted. With the multiplier method, the jury decides on a multiplier between 1.5 and 5.0 based on your injuries. It multiplies any economic losses against the multiplier to calculate your total damages.

Is There a Cap on Compensation for Pain and Suffering?

Some states impose a cap on non-economic damages like pain and suffering. New York does not cap medical negligence damages. Instead, you can ask a jury to award whatever amount it feels is fair on top of your proven financial losses. And you can keep the compensation the jury awards you for emotional distress, pain, and suffering.

What Are the Statutes of Limitations for Filing a Pain and Suffering Medical Malpractice Lawsuit in NY?

Patients usually have two years and six months after the treatment that caused the injury to file medical malpractice lawsuits. So if a doctor amputated the wrong foot, you have two and a half years after the surgery to file a lawsuit.

But the medical malpractice statute of limitations in NY has two exceptions that use the discovery rule. If you claim a foreign object was left inside your body, you have one year after another doctor discovers it or you have enough information that you reasonably should have discovered it. And after a missed cancer diagnosis, you have two years and six months after your doctor ends your treatment or you receive a correct diagnosis.

The Jacob Fuchsberg Law Firm Will Fight for the Maximum Compensation for Victims of Medical Malpractice

Navigating the complexities of a medical malpractice action to recover for pain and suffering and other damages requires a capable and well-respected law firm with experience in this highly specific area of the law.

The Jacob Fuchsberg Law Firm is well known to the medical malpractice defense bar and to judges whose calendars include medical malpractice cases. If you believe you have been the victim of medical malpractice and sustained serious injuries as a result, please contact us for a free consultation and case evaluation or call 212) 869-3500 today.