CUSHNER & BLOOM, P.C.

BROOKLINE, MA  02446

Tel. (617) 608-0019

E -mail: cbpc@ix.netcom.com

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If the defendant in a medical malpractice case is found negligent, the plaintiff is entitled to recover an award of damages that will place him in the position he was in immediately before the defendant's negligent act.  In other words, the plaintiff is to be compensated for all past, present, and future harm caused by the defendant's medical malpractice.

The elements that make up the damages the plaintiff may recover include, but are not  limited to, the following:

1. the reasonable value of necessary medical care incurred and which
will be incurred in the future;

2. fair compensation for the diminution in earning power, that is, the loss
of the capacity to work and earn a living; and

3. fair compensation for physical and mental pain and suffering and
reasonably probable future physical and mental pain and suffering.
Mental suffering can consist of sadness, depression, grief, anxiety, worry, embarrassment, terror, ordeal, shock or apprehension.  By mental
suffering, it is meant any mental anguish or emotional distress, as distinguished from physical pain and suffering.  This factor may also include mere loss of enjoyment of life.

There is no formula by which the jury will determine the amount of damages, other than to apply common sense and reason in weighing the evidence of the nature and extent of the injuries received.

The law requires a wrongdoer "to take his victim as he finds him."  In other words, the fact that the person injured was unusually susceptible to injury does not relieve the defendant from liability for any injury that he has caused.  If the defendant is negligent, the plaintiff's right to recover damages is not limited by the fact that his injury resulted from aggravation of a preexisting condition.  Where an injury arising from a cause which entails liability on the defendant combines with a pre-existing condition to bring about a greater harm to the plaintiff then would have resulted from the injury alone, the defendant may be found liable for all of the consequences.

A defendant is also liable for the premature hastening or the acceleration of a condition.

In Massachusetts, there is a limitation of damages for pain and suffering that a plaintiff may receive in a medical malpractice case:

        The jury may not award more than $500,000 for pain and suffering, loss
        of companionship, embarrassment and other items of general damages
        unless the jury determines that there is a substantial or permanent loss or
        impairment of a bodily function or substantial disfigurement or other
        special circumstances in the case which warrant a finding that imposition
        of such a limitation would deprive the plaintiff of just compensation for
        the injuries sustained.

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