Chapter 7. The Recovery of Damages in Healthcare Tort Actions

• Pages: 105-117
• Author: Janelle L. Davis and John P. Atkins

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7

THE RECOVERY OF DAMAGES IN

HEALTHCARE TORT ACTIONS

Janelle L. Davis and John P. Atkins

Once a plaintiff successfully establishes the defendant’s liability for his injuries, the

parties must focus on what damages that plaintiff may recover. Damages include

economic damages, such as medical expenses, and noneconomic damages, such as

pain and suffering, loss of enjoyment of life, and others. This chapter will provide

a brief summary of the types of damages available and will discuss various limita-

tions and policy considerations that impact damages awards.

Recovery of Medical Expenses

Plaintiffs will undoubtedly seek the recovery of medical expenses in tort actions.

In some jurisdictions, a plaintiff can recover the full amount of the billed medical

expenses regardless of whether he actually had to pay any of those expenses out of

pocket. An argument can be made that any other result would give the tortfeasor

the benefit of the plaintiff ’s insurance, thereby violating the collateral source rule.1

Although this can generate a windfall in favor of the patient, the reasoning is that if

one party is to receive any sort of benefit or windfall, it should be the injured party

who has successfully proven liability.

However, there are states that have rejected this windfall for the injured person.

For example, in 2007, the Texas Supreme Court noted that “few patients today

ever pay a hospital’s full charges, due to the prevalence of Medicare, Medicaid,

HMOs, and private insurers who pay discounted rates.”2 In response to this issue,

some jurisdictions have enacted so-called “paid or incurred” statutes, and some

courts have ruled that a plaintiff may recover only those medical expenses that

have actually been paid or incurred by the plaintiff. The applicable statute in Texas

is found in section 41.0105 of the Texas Civil Practice and Remedies Code and

1. “Long a part of the common law . . . the [collateral source] rule precludes any reduction in a tort-

feasor’s liability because of benefits received by the plaintiff from someone elsea collateral source.”

Haygood v. De Escabedo, 356 S.W.3d 390, 394–95 (Tex. 2011).

2. Daughters of Charity Health Servs. of Waco v. Linnstaedter, 226 S.W.3d 409, 410 (Tex. 2007).

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