Resources mentioned in this series:
Monetising the pain and suffering you've experienced.
In this section, we’re going to focus on the actual victim of medical negligence, and how the injuries have impacted their life.
We call these ‘general damages’.
General damages merely refer to non-pecuniary, or non-monetary, damages.
In simpler terms, it refers to the impacts of medical negligence that cannot immediately be measured in monetary value. These impacts include:
To help quantify something so subjective, the courts created a generalised approached called the ‘Injury Scale Values’ (ISV).
An ISV is a generalised approach to measuring the pain and suffering each type of injury causes.
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Quantifying Your Pain and Suffering
Despite its subjectivity, pain and suffering is quite easy to calculate because of these ISV’s.
What you need to do is not be intimidated by the number of steps – each is a bite-sized step of a larger, simpler process.
To find out the value (ISV) of your injury and what it’s worth, follow these steps:
List out all of your injuries from the incident, including mental trauma.
Now (to save you time in the next few steps), identify which of those are the most serious or have had the largest impact on your life (particularly when looking into the future).
EXAMPLE: KAREN
For example, Karen went in for some cosmetic procedures over a month. She was getting some facial injections done as well as a neck lift and eye surgery.
A couple of weeks had passed, and she still had wounds near her ears that were opening up. A few weeks later and her neck wound reopened. Being given little-to-no after-care, her condition got so bad she had to find a new doctor for corrective surgery that cost
thousands.
She couldn’t wear earrings. She couldn’t wear her glasses. She couldn’t go out in public.
For Karen, this procedure had lifelong implications, but not the ‘good’ type she had expected. She listed her injuries from the botched surgery as:
Physical
- Mild loss of hearing (25%) in both ears;
- Physical scarring and mutilation of the neck and ear areas .
Mental
- Extreme stress, anxiety, and lack of confidence.
Locate these in Schedule 4 of the Civil Liability Regulation 2014 (CLR). To do this, follow steps A-C below.
Read the contents of the CLR (p1-9), going through the Parts, then Divisions, then Subdivisions until you find the page numbers that could be relative to you.
List these out.
EXAMPLE: KAREN
For example, Karen found that the heading ‘Injuries affecting the ears’ made sense for her physical injury of hearing loss.
She continued looking for her facial scarring and then listed the applicable sections and page numbers in her ISV table.
Turn to the correct pages and start from the most extreme injury, reading the definition and examples in the middle column until you reach one that sounds like yours.
Note the item number (left-hand column) and the ‘ISV Scale’ (right-hand column) in the table below.
EXAMPLE: KAREN
For example, Karen flipped to ‘Injuries Affecting the Ears’ on page 50 of the ISV. She read the examples from extreme to minor ear injury until she reached one that sounded similar to her situation.
She ended up at ‘32 – Moderate ear injury’ after noting the definition included ‘a binaural hearing loss of at least 20% but less than 50%’.
As her audiologist noted her hearing loss at 25% in both ears, this seemed fitting.
She noted that and the ISV - 11-25.
She continued this process for her serious facial scarring as well and put them both into her ISV table:
Estimate where on the scale your injury falls – the examples will help with this. The greater the number, the greater the impact of the injury.
EXAMPLE: KAREN
Karen then read the ‘comment about the appropriate level of ISV’ to determine the exact number for her. Since she didn’t experience the listed conditions for a high ISV, she picked a number at the lower end of the scale – 14.
She noted this and then continued the process for her other physical injury. She then put them into her ISV table to complete it:
This is the final step for physical ISV’s at the moment. We’ll return to it after we’ve considered the ISV’s for any mental trauma you might’ve experienced. If you are sure you have no mental trauma to report (or the impact is minor), you can move onto translating your ISV to a dollar figure.
Consideration for mental trauma.
There are a few extra steps involved when recording your mental injuries.
In the CLR, instead of noting what the injury is, such as ‘schizophrenia’, ‘PTSD’, ‘anxiety’, etc., it instead refers to a ‘PIRS’ rating. This stands for the ‘psychiatric impairment rating scale’.
This is used because the measurement is taken by the level of impairment caused, rather than the ‘injury’ itself.
The Psychiatric Impairment Rating Scale (PIRS) is a similar tool to the ISV, however is used to measure the impact that mental trauma and psychiatric impairment has had on a person.
Locate the PIRS section of the CLR on page 176.
Like with your physical injuries, you should look at the impairment headings and evaluate which are applicable to you – these are things like ‘Self-care and Personal Hygiene,’ ‘Travel,’ and ‘Social and Recreational Activities’.
EXAMPLE: KAREN
For example, Karen noted extreme stress, anxiety, and lack of confidence that stopped her from going outside and being sociable. Because of that, she considered the following headings to be applicable:
- Area of functional impairment: social and recreational activities
- Area of functional impairment: adaption .
She put this into her table as per the below:
Start reading the examples from ‘Totally Impaired’ to ‘Little or No Impairment’ until you find the appropriate level for you.
EXAMPLE: KAREN
For example, Karen found that her level of impairment for social and recreational activities was severe, and for adaption, moderate.
She added this to her table:
Note the percentage in the right-hand column (this is where the ISV rating was for the physical injuries). This percentage range is what we use to work out your ISV.
EXAMPLE: KAREN
For example, Karen would note:
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You have now measured your level of mental impairment and can translate that to an ISV number. To do this:
Return to Schedule 4 Part 2 – Mental Disorders;
Read from the extreme to minor mental disorder levels until you reach the area where your PIRS % aligns;
EXAMPLE: KAREN
For example, Karen found her PIRS rating of 11-30% fell into Item 11 – Serious Mental Disorder. She noted the ISV scale of 11-40 in column 5.
You can then estimate where on the scale you think the impairment falls. Remember, the more serious the impact, the higher the scale rating.
EXAMPLE: KAREN
Karen found that her impairment in social and recreational activities was much greater than in adaption, so she gave herself a higher ISV rating in that area. She put this into the last column of her table:
The final step for this section is to consolidate your physical and mental injury ISV’s from the tables in Part 2 Q2c and Part 3 Q7.
EXAMPLE: KAREN
Karen could then put these two tables together to create one holistic ISV table:
The conversion from ISV to $
We’ve worked out some numbers... but what do they mean and how do we translate them to a dollar figure?
Identify which injury has the highest ISV. We call this the ‘dominant ISV’, and we will use that as a collective reflection of the injuries sustained.
EXAMPLE: KAREN
Karen would note her serious mental disorder associated with social and recreational activities as her dominant ISV as the total of 30 is greater than her others.
If you think the highest ISV is a poor reflection of the entire impact the injuries have had, you can use an ‘uplift’. This uplift should be under 25%. Anything over 25% and you’re going to need to provide the courts with a great deal of justification.
EXAMPLE: KAREN
If 30 was an insufficient representation of her injuries (generally when there is a vast array of injuries incurred), Karen would apply for up to a 25% lift on the ISV. This would take it to 37.5.
Flip to Schedule 7 – General Damages Calculation Provisions to translate your ISV number into a monetary damages value. To do this follow steps A-E below.
Find the date range within which your injury took place.
EXAMPLE: KAREN
For example, Karen’s injury took place on July 1, 2017, so she would look at Table 8 (July 1, 2017 – June 30, 2018).
Locate your dominant ISV in the ISV ranges in the second column.
EXAMPLE: KAREN
Karen’s dominant ISV was 30, therefor item 6 is applicable to her.
In the 2 columns to the right, you’ll notice some figures. These are the basis of your
complete calculation. Note the base amount and variable amounts below.
EXAMPLE: KAREN
For example, Karen noted:
- Accident Date Range: 1 July 2017 to 30 June 2018
- ISV: 30
- Base rate: $51,350
- Variable Amount: (ISV – 25) x $2940
Calculate the variable amount by using the formula provided in the third column.
(ISV - XX)
x
$_____.___
=
Variable amount
EXAMPLE: KAREN
Karen could then put these two tables together to create one holistic ISV table:
(30-25)
x
$2940
=
$14,700
Calculate your final amount for pain and suffering by using the formula provided;
Variable
+
Base Amount
=
Pain and Suffering
EXAMPLE: KAREN
For example, Karen calculated:
$14,700
+
$51,350
=
$66,050
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Putting it all together.
You should now have added your figures to your schedule of damages.
It’s recommended, at this point, to add up your damages so far to see if you’ve reached the $150,000 quantum threshold.
Below is Karen’s example.
By doing this, you can check if you can surpass the remainder of this workbook and start working out how you’re going to hold your doctor accountable.
If you haven’t passed the threshold yet, don’t worry.