The short answer is no. The longer answer is maybe. How's that for lawyer double-speak? But here's what I mean:

When you bring a lawsuit to obtain money- to compensate you for your injuries, there are different types of compensation that you look to obtain. First, I'll talk about "economic" compensation. This means that if you earned let's say $75,000 per year, and you were no longer able to work, you could then calculate exactly how much money you would have earned over the course of your lifetime. We would need to evaluate what perks and benefits you received from your job and then evaluate the likelihood that your position in your company would go up or remain the same. We consider the possibility of promotions and the likelihood that your income would go up as you climb the corporate ladder. Those 'damages' are easily calculated.

Another aspect of 'economic' compensation is payment of your medical bills. In every significant accident and medical malpractice case in New York the injury you suffer will undoubtedly require additional medical or surgical correction. Should you have to pay the doctor and medical bills for something that never would have happened to you if it were not for someone else's wrongdoing? The answer is obviously no. Well, who pays for your medical and hospital bills? In a personal injury lawsuit such as a car accident, a trip and fall, a construction accident or even a medical error resulting in injury, the wrongdoer is supposed to pay. Your lawyer will typically include a claim for medical expenses in your lawsuit, seeking to repay you the money that you had to pay out of your own pocket.

What happens if your health insurance company paid for the medical and hospital bills for your injuries? In some cases your insurance company may seek to get repaid for the money that they paid to the doctors and hospitals on your behalf. In the legal world, this is known as "A right of subrogation." An article I read the other day accused health insurance companies of "double dipping" their customers for this practice. What do I mean? The author argued, quite persuasively, that customers pay their health insurance premiums every month. The reason they do this is to make sure that if they need medical care, their health insurance company will pay for the medical bills. This is a contractual agreement that the health insurance company has with you- the customer. Now, here's where it gets interesting. If you are injured by a doctor in New York, and you sue that doctor for compensation, and part of the compensation you seek to recover is for "medical bills and medical expenses," the insurance company, in some cases, can legally ask you to repay they money that they paid on your behalf. "OK" you say. You already know that from my explanation above. What's so unusual that this author said represents "double dipping?"

The "double dipping" occurs because the insurance company collects insurance premiums from you. So, they take your money, in exchange for their promise to pay your medical bills. If you're injured and you go to the doctor or hospital, they do in fact pay those bills (except for the deductible that you are still obligated to pay). So far, everything is as it should be. However, when you bring a lawsuit seeking to recover money for your medical bills, the insurance company turns around with their hand out and says "Hold have to repay us the money we spent for you." Let's now say that you were successful in your lawsuit and you obtained money in your case for your medical bills. Once you repay your health insurance company the money they asked for, you have now given them back money that they paid- that is true. But...they were legally and contractually obligated to pay for your medical bills because of the premiums that you pay each month. Nowhere in any health insurance contract does it say "We will only pay your medical bills if it's unrelated to an accident or medical malpractice." They are obligated to pay your medical bills REGARDLESS of the cause of your injuries. Why should they be reimbursed for something that they had a contract to pay? That's where the argument about double dipping comes in.

Getting back to the amount of money you can recover- those medical expenses are finite. In other words, you will know how much money you spent on medical and doctor bills. Yet, your future may be uncertain. You may need additional treatment or surgery in the future. You might incur additional medical expenses that you can currently only estimate how much they will cost. What if you need medical appliances such as a wheelchair or a prosthetic device that must be changed every few years? Maybe you need a walker or a hospital bed or oxygen or pain control pumps. These have dollar values. What if you are expected to live for another 30 years? How much will those items cost in 10, 20 or 25 years? In order to properly calculate those expected costs, we use an expert known as an economist- basically someone who studies the value of money. That expert will project out how much those items and medical care will cost over your lifetime. The economist will include inflation and factor in your earnings, your lost earnings and your future lost earning capacity. We understand that the value of a dollar today will change over time. With those projections, we can calcuate a range of economic damages that you have suffered as a result of your injuries.


This part of a money award is for the pain and suffering you experience from the time of your injury, until the time of trial. Future pain and suffering is the money you seek for the pain, disability, loss of enjoyment of life and the suffering you will experience into the future and for your forseeable future. It is this part of the money award that you seek that can be virtually unlimited. Why do I say that? Because there is no set guideline that any Judge will give you at trial telling a jury that your pain and suffering is worth only "X" dollars and not a penny more. In fact, a judge will not give any guidance about how much to award for pain and suffering. For that decision the jury must rely on their common sense and their collective experience. The attorneys will likely suggest a particular number, or maybe even a range of what they feel is appropriate to award for your pain and suffering. You can expect that the defense lawyer will ask the jury to award nothing or something very minimal.


Let's say a jury in Brooklyn or the Bronx or Queens or even Manhattan awards you an outrageously high amount of money to compensate you for your past and future pain and suffering. Does that mean the next day you'll get a check from the defendant's insurance company? Wishful thinking. The first safety net for the defense will be when they ask the trial judge to (1) throw out the verdict, (2) reduce the award significantly claiming that the amount awarded deviates from "appropriate" compensation for your injuries, or (3) send the case back to trial to have another jury re-decide how much money you are entitled to. Your attorney will naturally fight each of those requests. If the trial judge reduces the award, do you think you're getting that check so quickly? Think again. The second safety net for the defense is to appeal the verdict as well as the trial judge's decision to reduce the award. The defense will appeal the case to the Appellate Division of the Supreme Court in the State of New York. The appeals court has many options available. They can throw out the case, in which event you get nothing. They can determine that the award significantly deviates from what is appropriate compensation and send the case back to trial to be re-tried. They can reduce the award, and in some very limited cases, increase the award because they feel the award is inadequate.

So, getting back to the original question in the title of this article: "Is there a maximum amount you can recover for your injuries?" The long answer is maybe- but don't forget about the defense "safety net" that's going to limit your award to what an appeals court feels is appropriate for your injuries.

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer