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Medical Malpractice

Can You Sue a Doctor for Pain and Suffering?

February 3, 2021
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.
In addition, a physician whose negligence causes injury in a non-medical malpractice action may, of course, also be sued for pain and suffering and other damages; examples of such lawsuits would include a car accident where the car is owned or driven by a physician or an accident that occurs due to a defect in premises that a physician owns.

The elements of a medical malpractice lawsuit (action) include establishing a physician-patient relationship, evidence that the doctor’s actions or inaction fell below good and accepted standards of medical care, treatment, and practice in the community in which the physician practices, and that the physician’s departures from good and accepted standards of care were a substantial factor in causing the patient’s injury. This last element is known as “proximate cause.”

The fact that a patient’s injury occurred does not automatically mean that it was the result of medical malpractice. Rather, it is common practice in a medical malpractice case to have another physician act as an expert witness to explain the applicable standard of medical care and how the defendant physician’s treatment or failure to correctly treat the patient departed from that standard and was a proximate cause of patient’s injury.

The patient’s pain and suffering, which arises from the physical and psychological injuries sustained as a result of medical malpractice, are recoverable in a medical malpractice lawsuit and are a major element of damages. The severity and duration of those injuries and their associated pain and suffering are one of the major factors in evaluating the potential recovery in a medical malpractice action.

Other elements of damages 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.

Medical Malpractice Resulting in Wrongful Death

If the 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 law suit. 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 grandchild have reached adulthood. Unlike some other states, New York does not recognize grief due to the patient’s death as an element of damages.

The Jacob Fuchsberg Law Firm - Here When You Need Us

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 expertise in this highly specialized 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.