While nuclear verdicts can exceed $100 million in America, large verdicts in many jurisdictions overseas are restrained due to laws and judicial systems that constrain verdicts within more contained boundaries. In many jurisdictions, the largest verdicts are unlikely to exceed $13.6 million dollars, according to Simon Kayll, chief executive of the Medical Protection Society (MPS), a member-owned, not-for-profit protection organization for doctors, dentists, and other healthcare professionals.
That’s because the judicial rules that govern medical professional liability (MPL) verdicts in the jurisdictions covered by the MPS, which includes the United Kingdom, South Africa, Ireland, Singapore, Hong Kong, New Zealand, and Malaysia, divide claims into two elements: general damages and special damages.
General damages cover nonquantifiable losses such as pain and suffering, mental anguish, and decreased quality of life. Special damages include costs that can be quantified such as past and future medical expenses and loss of wages and earning capacity. Guidelines govern the limits that judges can award in general damages, while special damage awards are based on actual lost earnings and medical expenses that patients with viable claims have incurred.
Two important differences exist between the U.S. and many other jurisdictions when it comes to nuclear verdicts: other countries do not have punitive damages and settle cases through jury trials. “We don’t have punitive damages because all of our awards are set by a judge,” Kayll said. “Even if cases go to court, we don’t have juries. The idea of providing additional compensation for the claimant or the plaintiff as some sort of punishment doesn’t really exist.”
When damages are awarded for pain and suffering in England and Wales—otherwise known as general damages—there are upper limits known as tariffs that are provided as part of the Judicial Studies Guidelines for the Assessment of General Damages in Personal Injury Cases. The Judicial Studies Guidelines are a summary of personal injury damages awards from courts all over the United Kingdom.1
In England and Wales, the upper limit on the general damages tariff is around $544,283 for the most extreme cases, according to Kayll. In Northern Ireland, limits are higher at nearly $1 million, and in Ireland, they land in between at approximately $614,539, he noted, with South Africa, Hong Kong, and Singapore somewhat lower. However, general damage awards tend to be a smaller part of overall MPL claim awards.
Across the world, the intent of special damages is to try to return MPL claimants back to the position they were in before an injury or other negative medical event. In the case of severe injuries, that isn’t possible. For example, if a surgical mistake means that a mobile person can no longer walk, that person will not return to his or her previous circumstance. However, that person can receive services such as assistive devices, physical therapy, and the help of home health aides so that the individual can function as close to the ways that he or she did in the past.
“The big elements with special damages are the loss of future earnings and future care needs for individuals,” Kayll said. “The biggest awards tend to go to children who were injured at birth or soon after because they are the ones who have the longest life expectancy and modern medicine can keep them alive near to a normal life expectancy. That’s a very long time if you need to pay money up front to meet all their needs.”
Costs that are included within special damages are:
- Medical equipment
- Home health aides
“While these costs can really add up, even in these circumstances, it is rare for us to have a claim more than £10 million,” said Kayll. “At the moment, we only have six U.K. claims reserved on our books at more than £10 million, two in Ireland, and two in Hong Kong.
“In South Africa, there’s actually been a court case in the Supreme Court of Appeal in South Africa, in which the court deemed it inappropriate to have additional compensation for someone who’s already been fully compensated,” he continued. “That’s the biggest difference between these jurisdictions and America. The big difference between an award of $10 or $20 million and $100 or more million is the exemplary, punitive or aggravated damages, as I understand it.”
Settlement outside of court
Just as in the United States, the vast majority of cases never go to court. While the rate is approximately 5% in the United States, the rate is less than 1% in the U.K., South Africa, Ireland, and Singapore. The rate is higher in Malaysia at about 10%, Kayll noted.
While many cases are settled privately outside of court, there are some jurisdictions that encourage alternative dispute resolution. “In fact, the High Court Rule in South Africa has mandated a consideration of mediation,” Kayll said. “Many dental cases are mediated to resolution but with a large complicated medical case, mediation is rare.”
Even though litigation is rare in MPL claims, those cases that do go to court have the chance to create a precedent. However, because of the way the systems are structured in the U.K. and other countries around the world, those changes are not likely to be highly significant. “While there could be new precedents set, the impact of those precedents isn’t likely to be huge,” he said.
Cases litigated by MPS are usually decided in the defendant’s favor 60% of the time, Kayll said.
While most courts in the U.S. are closed with trials put off until later in 2021, some court cases are going ahead virtually in the U.K. and other jurisdictions. “The system, particularly in the U.K., seems to be working reasonably well,” Kayll said. “It’s not ground to a halt by any means— matters are still getting resolved and court cases are still getting a hearing.”
In a similar fashion to the United States, MPL insurers such as the MPS are not yet sure what claims and potential litigation may emerge from COVID-19. “Our best thinking at the moment is that we don’t think there will be a significant impact on large claims,” he said. “We think there will be more claims but that on the whole they will be at a lower end of values than the maximum limits that we have here.
“In our system, the largest claims tend to be for babies or children who have been severely damaged and need long-term care, but we don’t expect that the COVID situation has caused a big increase in that sort of injury to babies or children, certainly not due to negligence,” he continued.
Nursing homes have definitely been an area where claims might arise due to the deaths of patients, just as in the United States. However, because of the way the system works in the U.K. and other countries, those claims are not likely to result in large verdicts, Kayll said.
Going forward, Kayll said that improvements in life expectancy and medicine and low interest rates are likely to continue to nudge upper limits on special damages higher. In addition, Kayll noted that inflation around MPL claims tends to exceed normal inflation. MPS estimates that this rate will increase at a pace of between 7% and 10% a year.
“If we have exactly the same claims in five years’ time as we do now, we would expect that to have escalated by 10% every single year,” he said. “That means an increase of more than half as much again. Because interest rates are so low, compensation rates are higher to ensure that the individuals who receive compensation can take care of themselves based on an investment return without taking too much risk.”
However, Kayll doesn’t believe that there will be a material change that will raise claims to anywhere near the level of those in the United States. “The plaintiff ’s bar is an imaginative lot, but I can’t see things changing to a large extent,” he said.
1. “The Judicial College Guidelines,” LexisWeb.co.uk, November 2019, https:// lexisweb.co.uk/sources/the-judicial-studies-board-guidelines