This Article is Volume 4 in a multi-part series discussing chiropractic malpractice cases in New Jersey. Volume 1 provided a general overview. Volume 2 addressed the first element of a chiropractic malpractice / negligence case: breach of duty / standard of care. Volume 3 addressed proximate cause. This article will address the next element a malpractice plaintiff must establish – what damages the patient suffered if they met their burden of proof on liability.
We again start our analysis with the standard Model Civil Jury Charges on Damages. This is the law that is actually read to a jury in New Jersey after the parties have completed closing arguments and the jury is getting ready to deliberate. There are multiple jury charges on Damages in New Jersey and the attorneys and judge will determine at what is called a “charge conference” after closing arguments which jury charges will be read to the jury.
Damages are typically broken down into the following categories: i) past unpaid medical bills; ii) future medical expenses; iii) past and future lost wages; and iv) pain, suffering and permanent injury. While the first three categories can be calculated with certainty based upon expert testimony, the fourth cannot and it is up to the jury to determine what dollar amount to award which varies drastically between juries and where the case is venued.
The New Jersey Model Civil Jury Charges posit the following question to jurors if they reach deliberation on damages: “What sum of money will fairly and reasonably compensate the plaintiff for damages he/she sustained as a proximate result of the accident/incident?” If the plaintiff has a spouse, the jury also has to determine how much to award the spouse for “loss of consortium” or loss of spousal services. A jury may consider the life expectancy of the plaintiff/patient in calculating pain and suffering damages. If the jury makes an award for future pain and suffering, disability and impairment, loss of enjoyment of life, medical expenses, and loss of future earnings, they may consider the plaintiff’s life expectancy which is an estimation of their probable length of life based upon statistical data. The jury is directed to exercise sound judgment in applying the life expectancy figure without treating it as a necessary and fixed rule.
With regard to medical expenses, the Charges instruct: A plaintiff who is awarded a verdict is entitled to payment for medical expenses which were reasonably required for the examination, treatment and care of injuries proximately caused by the defendant’s negligence. However, if the jury determines that any of these bills were not fair and reasonable to any extent, or that any of these services were not reasonably necessary to any extent, the jury need not award the full amount claimed.
With regard to loss of income, the Charges instruct: Any award for lost earnings must be based on net take-home pay, not on gross income. First, the jury must decide whether the plaintiff / patient proved that they were disabled by their injuries which in turn resulted in lost income. The jury is directed to consider the length of time during which the plaintiff was not able to work, what their income was before the injuries, how much they earned upon return to work, whether the injuries affected their ability to do any tasks required on the job, and any lessening or decrease in their income after returning to work.
However, the Charges also provide that the plaintiff/patient has a duty to mitigate their own damages: If the jury decides that the plaintiff is entitled to damages for their injuries, the jury must then determine whether any of plaintiff’s injuries could have been avoided or alleviated by plaintiff’s exercise of reasonable care to protect his/her own health. It is a general rule that a plaintiff injured by another’s negligence has a duty to exercise reasonable care to seek and submit to medical and surgical treatment in order to affect a cure and minimize damages. Damages that could have been prevented by the plaintiff’s exercising reasonable care are not the responsibility of the defendant.
Stay tuned for the next installment in Volume 5 where informed consent as a separate cause of action will be discussed.
The author of this article is an independent person of the ANJC and his views are not authorized, sponsored, or otherwise approved by the A.N.J.C. The information provided is for general guidance on matters of interest only and may not take into account particular facts relevant to your individual situation. The application and impact of laws and health care can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in these materials. Accordingly, the information you receive is provided with the understanding that the author and the A.N.J.C. are not herein engaged in rendering legal, accounting, tax, health care or other professional advice and services nor are they providing specific advice with regard to your practice, the treatment of any specific illness, disease, deformity or condition, or any other matter that affects trade, commerce, or legal rights of others. As such, this article should not be used as a substitute for consultation with professional accounting, tax, legal, health care, or other competent advisers. Before making any decision or taking any action, you should consult an appropriately trained professional.
Jeffrey Randolph, Esq.
ANJC Legal Counsel