How Are Medical Negligence Damages Decided?

Medical negligence cases are often complicated, with a number of different factors converging to cause the damage which is the subject of the claim. For that reason, calculating the appropriate level of compensation can sometimes be difficult, and the courts have developed a variety of different tools to help provide consistency in this task.

General Damages

The compensation which will be received for the actual injury suffered is typically known as ‘general damage’, and is intended to compensate a claimant for the pain, suffering and loss of amenity caused by the medical negligence. Such a measure is clearly highly subjective, and in order to avoid wildly differing awards, the courts tend to use two sources to check their instincts. Firstly, the Judicial Studies Board Guidelines are consulted, which provide so-called ‘brackets’ of compensation for injuries of differing seriousness, and which cover damage to all parts of the body. These brackets give general guidance about the likely amount of compensation to be received, which is then honed and perfected by consulting case law precedent. Practitioners and judges will search through a database such as Kemp & Kemp on Quantum, which covers a wide range of previous decisions on injuries of all kinds and within all of the JSB brackets. Crucially, they will make sure to adjust any figures from old cases upwards, to allow both for inflation and for recent court decisions which have made most awards for personal injury compensation more substantial. The lawyers in the case will argue about which precedents fit the current claim most closely, and then the judge will make a decision.

Special Damages

Despite being the focus of much of the legal argument in medical negligence cases, general damages are often dwarfed by so-called ‘special damages’, which cover the loss and damage suffered by the claimant as a result of the injury. Due to the nature of medical negligence cases, these sums can often be very significant. They involve not only past losses such as time off of work or travel to hospital, but also future losses such as the need for domestic help, further medical treatment or the loss of physical ability. When determining such future losses, judges will usually consult complex actuarial forms known as the ‘Ogden tables’, which provide formulae for awarding damages in the future. These tables take into account the predicted chance of the claimant dying before the end of an average lifespan, their predicted health, and many other factors.

After deciding both general and special damages, the judge will simply add both figures together and then add interest, usually from the date at which the claim was made to the date at which judgment is given. This is to ensure that the delay of litigation does not put the claimant out of pocket due to inflation in the intervening time.

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