It may seem a fairly straightforward concept: In order to bring an injury claim, one must prove – among other elements – a compensable injury.

But what does that mean, exactly?

Here’s one example: You are in a car accident caused by another and you suffer a broken bone. That’s a compensable injury. As a result of that injury, you suffered pain, incurred medical bills, maybe had to take time off work and will likely require follow-up treatments or therapies.

On the other hand, if you were given the wrong medication by a pharmacist but suffered no major ill effects and did not have to spend time receiving follow-up care or incurring ongoing tests as a result, it’s likely you will not be able to identify a compensable injury – even if there is no question the pharmacist was negligent.

The basic test is whether there is some measurable cost incurred as a result of someone else’s negligence or malpractice.

Our Fort Myers medical malpractice lawyers recognize these cases are seemingly straightforward, but not all incidents are so clear. This is why it’s important to always discuss your options with an experienced attorney.

One case in which the issue of compensable damage was less than clear-cut was that of Sadler v. PacifiCare of Nev., Inc., before the Nevada Supreme Court. Although medical malpractice laws vary between states, the general principle of the types of injuries deemed compensable is the same.

According to court records, an outbreak of hepatitis C was linked to unsafe injection practices used in certain health care facilities in the southern part of the state. Patients who were deemed at risk by way of having undergone these procedures were advised to submit for updated testing of numerous blood-borne diseases, which included hepatitis C as well as hepatitis B and HIV.

All of the patients who came forward for retesting tested negative for these conditions. Thus, they did not suffer a physical injury as a result of the facilities’ clear negligence.

It was on this grounds – lack of compensable injury – the facilities argued lawsuits against them for negligence should be dismissed.

The trial court agreed, dismissing a class action claim asserting negligence and negligence per se for failure to perform the duty to establish a quality assurance program to oversee medical providers within the network. There was no “actual injury,” the court ruled.

However, the appellate court reversed. The reason? Patients did incur costs/pain/mental anguish by needing to submit to additional testing and undergo ongoing medical monitoring as a direct result of the unsafe injections provided by defendant’s subsidiaries.

In its decision, the court noted the West Virginia Supreme Court’s 1999 ruling in Bower v. Westinghouse Elec. Corp., which found merit in claims for medical monitoring. In that ruling, the court ruled the purpose of such claims is to make sure defendant pays for costs of all long-term diagnostic testing, and also to aid in the early detection of any latent diseases that may later be identified as resulting from defendant’s negligence.

Defendants did not object to paying for medical monitoring, but argued plaintiffs had no claim for negligence without presenting evidence of an actual physical injury. In this case, that would mean providing proof they had actually contracted a blood-borne illness.

The court ultimately ruled that “injury” in these cases can mean legal injury, as well as physical injury.

If you have been a victim of medical malpractice, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Sadler v. PacifiCare of Nev., Inc., Dec. 31, 2014, Nevada Supreme Court

More Blog Entries:

Wilkins v. Conn. Childbirth & Women’s Ctr. – Birth Injury Claim Revived, Dec. 10, 2014, Fort Myers Medical Malpractice Lawyer Blog