Personal injury in a negligence action is defined as any harm caused to a person. A tort is a “civil wrong, other than breach of contract, for which a remedy may be obtained, usually in the form of damages.”
Types of personal injury tort claims include medical malpractice, slip and fall, labor law (work injuries), vehicular accidents, product liability, and toxic torts, among others. Catastrophic injuries, as the name implies, involve significant physical and/or cognitive deficits, typically resulting from serious injuries to the brain or spinal cord (e.g. paralysis), serious burns, loss of limb(s) or death.
Damages in a personal injury tort claim are the money the defendant(s) pays for injury or loss caused by negligent acts. The potential recovery in catastrophic injury cases is substantial due to the high costs of plaintiff’s lifetime medical care needs, diminution in earning capacity resulting from the injuries, and the monetary value attached to significant pain and suffering and functional loss.
The stakes are high for both sides when a catastrophic personal injury case goes to trial. Plaintiffs risk a defense verdict with no award to cover future medical needs or lost income. Defendants risk a high jury verdict. Thus, many of these cases ultimately settle before trial.
Before settlement, each side conducts its own evaluation of the potential case value. Below we set forth an introduction to the basic economic and non-economic damages recoverable in a catastrophic injury case, the usual methods used to assess such damages, and the role of the Legal Nurse Consultant (LNC) in evaluating a catastrophic injury case.
Economic damages are actual dollars losses that can be calculated. They include past and future lost wages, third party liens, and medical and other out-of-pocket medical expenses resulting from plaintiff’s injuries.
Non-economic damages are intangible losses for which there is no mathematic basis for valuing. The main non-economic damage categories include physical pain and suffering, and mental or emotional harm. Some states have imposed caps on non-economic damages.
Plaintiffs with catastrophic injuries often cannot engage in the same daily, recreational or avocational activities as before the injuries, or they do so with pain and limitations.
Some states allow recovery for loss of enjoyment of life, defined as “detrimental changes in a person’s life, lifestyle or ability to participate in previously enjoyed activities and pleasures in life.”
A loss of consortium claim may be brought on behalf of the non-injured spouse for economic and non-economic losses. Economic losses are for the services the injured spouse can no longer perform such as indoor and outdoor household maintenance, assistance with activities of daily living or transportation. It also includes emotional losses, such as “affection, comfort, companionship, and sexual society”.
Damages in Wrongful Death Cases
Wrongful death damages include decedent’s conscious pain and suffering from the negligent acts, their distributees’ economic loss resulting from the death, and in some states, their emotional harm from loss of a loved one.
Some states do not allow recovery for emotional harm, which means the potential recovery is more limited. For example, New York only allows recovery for pecuniary injuries, also known as monetary injuries.
Evaluating damages in catastrophic injury cases
Assessment of damages requires evaluation of all pertinent evidence obtained during discovery. This includes medical records documentation, parties’ deposition testimony, monetary loss documentation, third party liens, expert opinions and independent (defense) medical examiners’ reports.
Experts are critical in establishing damages in a catastrophic injury case. Below are the types of experts commonly retained to render opinions about the nature and extent of plaintiff’s injuries. In some cases, such experts may be treating physicians.
Neuropsychology Expert: Plaintiffs with severe hypoxic or traumatic brain injuries often suffer significant cognitive deficits and/or personality changes. Neuropsychologists are skilled in assessing such brain injuries, commonly utilizing a series of tests that evaluate various functions.
The expert identifies those function deficits that likely resulted from the plaintiff’s injuries. Given that most individuals do not undergo baseline neuropsychological testing, the expert must base opinions on whatever pre-morbid documentation of cognitive and interpersonal functioning exists. This includes evaluation of prior academic records and achievement, and previous employment responsibilities and job performance evaluations in comparison to post-injury capabilities. The neuropsychologist may also review post-injury medical treatment records and interview close family members about premorbid personality traits to evaluate personality changes resulting from a catastrophic injury.
Vocational Rehabilitation Expert: A vocational rehabilitation expert may be used where plaintiff claims lost or diminished wages because the injury precludes plaintiff from continuing pre-injury employment at all, or at the same level. This expert would assess whether plaintiff is employable and, if so, in what potential capacities and to what extent.
Life Care Planner: Life Care Planners typically are nurses or vocational rehabilitation specialists. They prepare a Life Care Plan, which is an assessment of the annual health care and related needs over plaintiff’s lifetime and the corresponding costs. This detailed cost analysis is based on the Life Care Planner’s review of pertinent medical records, assessment of the plaintiff and plaintiff’s home or outside living facility, consultations with plaintiff and or responsible relatives, consultations with key health care providers, and reference to applicable resources for care and equipment costs.
Economist: The economist provides three main types of projections: 1) future health care and related costs; 2) lost future earnings and benefits; and 3) loss of household services. The projection for future health care and related costs typically is based on the Life Care Plan cost analysis and takes into account inflation and life expectancy, among others factors.
Independent (defense) medical examiner: In personal injury cases, the defense is entitled to a physical and or psychological examination by a health care provider of their choice. Examiners typically possess clinical expertise in the type of injury plaintiff sustained. Defense counsel provides the examiner with the plaintiff’s medical records and applicable imaging studies before the exam. After the exam, the examiner provides a report to defense counsel that includes an opinion regarding the cause, nature and extent of plaintiff’s injuries. This report is then produced to plaintiff’s counsel.
Jury Verdict/Settlement Searches
Jury awards and settlement amounts for particular injuries vary with the jurisdiction. Thus, each side may conduct jury verdict and settlement searches to determine previous awards and settlement amounts for similar injuries in the same state or geographical area. In high damage cases, it is especially helpful to research appellate court decisions related to whether an award was either inadequate or excessive. This gives the attorneys a general idea of the award range appellate courts deem appropriate for a particular injury.
Settlement in catastrophic injuries may involve structured settlements, Medicare Set-Asides, or Special Needs Trusts, as described below.
Structured Settlements: Structured settlements provide periodic payment streams (e.g. monthly, yearly) and/or future lump sum payments. Potential benefits provided by structured settlements, among others, include: payments (including principal and interest) are exempt from federal and state income taxes under IRC § 104(a)(2); payments can be timed to arrive when needed to meet anticipated specific future expenses; payments can continue for plaintiff’s life eliminating the risk of plaintiff outliving his funds; inflation escalators can be built in; and age-rating may be available to enhance the payments available for a given cost.
Medicare Set Asides: A Medicare Set Aside (MSA) is an account in which money from plaintiff’s settlement proceeds is set aside to pay future medical expenses for related injuries that would otherwise be covered by Medicare. Such future Medicare-covered expenses and when they will arise can be determined by an MSA specialist. If a Life Care Plan has been prepared they can easily be extracted from it. The MSA can be funded either by a lump sum payment or structured payments that deliver funds to the MSA account when they will be needed according to the MSA specialist’s analysis.
Special Needs Trusts: Special Needs Trusts (SNTs) preserve certain public benefits – Medicaid and SSI – for those in need of assistance because of a disability. Funds in a SNT are not considered “available” to the injured person in determining qualification for or continuance of such public benefits and, therefore, do not disqualify plaintiffs from receiving such benefits.
The LNC role in evaluating damages in catastrophic injury cases
Legal nurse consultants (LNCs) are integrally involved in assisting attorneys to evaluate damages in medical malpractice and other personal injury claims. Attorneys are most likely to seek LNC assistance with catastrophic injury cases of all types because typically they involve complex medical issues, voluminous medical records and high stakes.
While the LNC role varies with the firm or attorney preferences, LNCs can participate in the evaluation of damages by:
- Identifying the relevant health care providers, periodically updating the medical records
- Preparing a chronology with medical records excerpts pertaining to damages
- Preparing a “pain and suffering” chronology
- Identifying those injuries resulting from the negligent acts, including whether there is aggravation of a pre-existing or latent condition
- Identifying the experts necessary to opine regarding damages and providing them with the necessary materials to evaluate damages
- Conferencing with the expert and the attorney about the nature of plaintiff’s injuries and the impact on prior level of functioning
- Drafting the damages portion of interrogatories or similar discovery requests
- Providing the attorney with medical literature, anatomy drawings or medical terminology definitions to facilitate an understanding the plaintiff’s injuries
- Preparing and editing (plaintiff LNC) or evaluating (defense LNC) the damages portion of plaintiff’s demand letter
- Conducting a jury verdict search
- Analyzing medical bills to determine which items are pertinent to alleged injuries
- Participating in preparation of demonstrative evidence pertaining to damages in cases that go to mediation or trial
Skilled LNCs can provide enormous assistance in evaluating damages in catastrophic injury cases. Doing so requires in-depth review and analysis of the applicable medical records and other evidence, as well as a comprehensive understanding of the elements comprising economic and non-economic damages in the applicable jurisdiction.
Read the full article in the Journal of Legal Nurse Consulting.