I love alternative history stories. Things like “What if the Soviet Union had won the Cold War ?” or “What if JFK had not been assassinated?” I find fascinating and oftentimes help me better understand actual history. I even like alternative takes on imaginary history like “What If Spider-Man had been bitten by a radioactive ant?” or “What if Superman crash landed in Siberia instead of Kansas?” I think a lot of people think about “What if” everyday. “What if I called that potential customer back right away?” or “What if I hadn’t agreed to go on a blind date?” When people are faced with a traumatic event, their “What if” imagination goes into overdrive. “What if that nurse hadn’t noticed Mom was allergic to penicillin?” or “What if I had eaten that piece of glass in my food?” or “What if I hadn’t slammed on brakes when that guy ran the red light?” Those types of events seem so wrong and so full of danger, that they think there has to be a way to sue them.
Sometimes, those near-miss events are crimes and the person at fault can be fined or imprisoned. However, that doesn’t allow you to sue those people or obtain any money or any other relief for having that near-miss. The basic rule of damages for lawsuits is you can only get your “actual damages.” These damages can be “hard” damages, like medical bills, or lost wages; or “soft” damages like physical pain. But both types of damages actually happened to the injured person. You can’t get damages for “What if.” You can’t get damages for what might have happened, only what actually did happen. No matter how bad the possible outcome was you can’t recover. “I could have died!” is still only in the realm of “What if” and therefore not recoverable.
The flip side of this is something called the “thin-skull rule.” A person can recover all of their actual damages. “If he drove a bigger car, he wouldn’t have been hurt” or “If the patient didn’t already have a heart condition, the wrong medicine wouldn’t have hurt him” are not defenses for the person at fault. If you have or think you have a civil lawsuit, consult with an attorney but keep in mind that the best he can recover for you is what actually happened, not “What if.”
-Bradley A. Coxe is a practicing attorney in Wilmington, NC who practices in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes, and all forms of Civil Litigation. Please contact him at (910) 772-1678.