Can your ED patient legally recover damages?

States taking stance against "runaway verdicts"

A misdiagnosed ED patient is awarded millions of dollars in "damages" — monies paid to an individual for the injuries he or she incurred as a result of negligent or intentional harm of the defendant.

This sounds simple enough, but many ED staff are not aware of the distinction between compensatory, non-compensatory, and punitive damages, and don't realize the many categories for which juries may award damages, says Barbara Pilo, a health care attorney counsel attorney in the litigation section of the Dallas office of Fulbright & Jaworski.

A person who suffers an injury or loss as a consequence of medical negligence in the ED setting would be entitled to recover damages that will, as nearly as possible, "restore the status quo" of the individual, says Pilo. "An award of damages is supposed to be commensurate with the loss, and excessive damages will be disallowed," she says.

Runaway verdicts

The types of damages patients can recover varies depending on your state's laws, says Christy Tosh Crider, a shareholder at Nashville, TN-based Baker, Donelson, Bearman, Caldwell & Berkowitz "However, some things remain the same," she says.

For one thing, all states allow for the recovery of "compensatory" damages if it's shown that the medical provider breached the standard of care, to compensate the patient for actual losses such as medical bills, funeral bills, lost wages, and lost earning capacity.

Plaintiffs also can recover punitive damages, designed to "punish" the medical provider for wrongdoing and discourage future misconduct, but this requires a higher threshold of proof. To recover punitive damages, patients might be required, for example, to show that conduct was "intentional" or "reckless." "The level of proof of wrongdoing is heightened to justify the imposition of punitive damages" says Pilo.

Punitive damages are based, in part, on the medical provider's financial worth, says Crider. "Many states have put caps on non-economic damages because of runaway jury verdicts with no real relationship to the actual losses suffered, and my opinion is that all should," she says. "They only serve to provide a windfall to one plaintiff and her lawyer at the expense of hundreds who will pay more for health insurance and medical care."

For instance, in 2007, a jury in McMinnville, TN, found an ED at fault for allegedly missing the signs of a heart attack in a patient. The jury awarded the man's family less than $10,000 in funeral bills, less than $200,000 in pecuniary damages — and $7,000,000 for loss of consortium, or the loss of his companionship. "This is an example of a runway verdict which drives up health care costs for everyone while providing a windfall to a few," says Crider.

As a result, many good ED physicians are choosing to practice only in states that have caps on damages, adds Crider. "This affects health care for millions more in states with no caps on damages," she says.

For example, in Texas, punitive damages now may be awarded only if there is a finding of fraud, malice, or gross negligence. Barring certain limited exceptions, punitive damages also are subject to a cap on the maximum amount and require a unanimous jury finding, says Pilo.

Additionally, the burden of proof required for a punitive award in Texas cases is a "clear and convincing" standard, a level of proof greater than the "preponderance of evidence" standard used in negligence cases, but less than the criminal standard of "beyond a reasonable doubt," says Pilo.

Damages vary widely

Two common scenarios in the ED that might give rise to a claim for damages are allegations of delay in treatment and misdiagnosis. However, the damages that might be incurred in these circumstances would vary widely, depending in large part on the severity of the patient's injury, says Pilo.

Compensation for pain and suffering is invariably claimed upon the filing of a lawsuit, but even this type of damage may be challenged if there is a question as to whether a plaintiff consciously experiences pain, says Pilo.

To illustrate the types of damages that may be available based on allegations of negligence in the ED, Pilo gives the following example of a complaint of headache which was not timely diagnosed as an intracranial hemorrhage, resulting in permanent neurological impairment. Here are damages that might be awarded in such a case:

  • The pain endured in connection with rehabilitation and coping with disability would be compensable, as would be the future pain anticipated, since the injury will continue to affect the plaintiff for the rest of his/her life.
  • The plaintiff potentially would be able to recover damages for mental anguish, prior to the verdict and continuing in the future, as well as amounts for physical impairment, disfigurement, past and future medical expenses, loss of household services, past loss of income and loss of earning capacity in the future.
  • Depending on state law, a spouse or child may have a claim for loss of consortium, which would include such elements as loss of society and companionship.
  • In the event that the alleged treatment in the ED results in death, the potential would exist for other types of damages. In Texas, a survival action may be brought for damages sustained by the decedent prior to death. Additionally, a statutory wrongful death claim exists in favor of the surviving spouse, children, and parents of the decedent, who may sue for "pecuniary loss." This refers to benefits that would have been received from the decedent if death had not ensued, including loss of consortium, mental anguish, and loss of inheritance.

When can't damages be recovered?

A litigant cannot recover damages that are speculative or conjectural, says Pilo. For example, a high school athlete who complains that a popliteal artery injury went undiagnosed in the ED, leading to compartment syndrome with amputation as an end result, might have a legitimate claim for damages from pain, suffering, medical expenses, and loss of earning capacity. "However, such an individual would have difficulty recovering for the claim of future loss of earnings as an NBA star," she says.

While a litigant may be compensated for mental anguish, there must be evidence to sustain such a damage award. For instance, a jury might award mental anguish damages if the plaintiff sustained a severe physical injury as a result of negligent treatment.

Mere disappointment, annoyance, or inconvenience would be insufficient to support an award of mental anguish damages. "An individual vexed by a long wait for removal of a non-infected foot splinter in an ED, crowded with patients more urgently in need of medical attention, might be hard pressed to show any damages. The additional minutes of pain experienced probably would be regarded as de minimis," says Pilo.

Being upset about having to wait for medical attention in the ED likely would not be enough, in and of itself, to warrant damages, unless the delay in treatment could be shown to have had a deleterious effect, worsening the condition that brought the individual to the ED, says Pilo.

Damages frequently are not capable of precise, mathematical calculation, particularly claims for intangible elements such as physical pain and suffering or mental anguish, says Pilo. "However, once proof of a recognizable physical injury from negligent care can be made, jurors have considerable latitude in assessing damages," she says.

Nonetheless, a litigant must still demonstrate a causal connection with the wrongful act alleged in the lawsuit. Damages must be the "probable and foreseeable consequence of the conduct that gave rise to the complaint," says Pilo.

"In cases originating in the ED, the trier of fact charged with determining damages frequently must distinguish between the medical problem which brought the patient to the ED in the first instance, and the damages attributable to the alleged departure from the applicable standard of emergency medical care," says Pilo.

For example, a litigant critical of a delay by ED personnel in treating the presenting symptoms of an evolving myocardial infarction with thrombolytics would have to demonstrate damages attributable to the time interval in which treatment was allegedly unavailable, says Pilo.

"Typically, this would involve showing that delayed medical attention led to an injury to the heart that would not otherwise have occurred," she says. The plaintiff also would have to show consequent damages, such as pain, mental anguish connected with physical disability, change in life style, or loss of earning capacity.

"To the extent that the litigant would have sustained these damages regardless of the events which transpired in the ED, damages most likely would not be recoverable," Pilo says.


For more information, contact:

  • Christy Tosh Crider, Shareholder, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, 211 Commerce Street, Suite 1000, Nashville, TN 37201. Phone: (615) 726-5608. Fax: (615) 744-5608. E-mail: Web:
  • Barbara Pilo, Counsel, Fulbright & Jaworski LLP, 2200 Ross Avenue, Suite 2800, Dallas, TX 75201-2784. Phone: (214) 855-8044. E-mail: