Damages in a Medical Malpractice Action

tytanium | 12.21.17

MICRA, the Medical Injury Compensation Reform Act, was enacted in California in 1975.  It limits recovery of non-economic damages in medical malpractice cases, including claims for pain and suffering and loss of consortium, to $250,000.  Somewhat controversially, MICRA does not have a provision for the $250,000 cap to be adjusted for inflation, so the cap has remained at $250,000 since 1975.

While MICRA limits recovery for non-economic damages, there is no similar limit for economic damages.  When someone dies as a result of medical malpractice, then, the family’s best recourse for recovery of damages is to put forth a strong claim for economic damages as a result of the death.  CACI 3921 specifically provides for compensation for the following:

  1. The financial support, if any, that decedent would have contributed to the family during either the life expectancy that decedent had before his death or the life expectancy of plaintiff, whichever is shorter;
  2. The loss of gifts or benefits that plaintiffs would have expected to receive from decedent;
  3. Funeral and burial expenses; and
  4. The reasonable value of household services that decedent would have provided.

Lost financial support is recovery for the decedent’s lost ability to earn money.  Plaintiffs must prove the amount of money the decedent would have been reasonably certain to earn if the injury had not occurred.  It is not necessary that the decedent have a work history, and the amount of wages need not be calculated based on the decedent’s salary at the time of death.

Lost household services include everyday household management, such as cooking, cleaning, caring for children, etc.  To recover these types of damages, plaintiffs must prove the reasonable value of the services the decedent would have been reasonably certain to provide his household if the injury had not occurred.  The theory is that with the decedent gone, these services will have to be performed by someone else, often at a cost to surviving family members (a nanny to cover child care, a housekeeper to clean the house, etc).

In setting a damages amount, a jury should be instructed use common sense and factor in such considerations as the deceased’s life expectancy, standard of living, and career.

Posted in