Damages

It is never too early to start assessing the damages that might be claimed in a personal injury claim. Whether the damages are for wrongful death, lost wages, physical, or emotional suffering , dental or other damages, the experienced attorney will start, immediately upon being retained, gathering the necessary documentation to prove damages.

For example, in a Wrongful Death or Survival Action claim, it becomes important to determine if there was any conscious pain and suffering by the deceased, what the loss of earnings were from the date of injury to the date of death, who the possible claimants/beneficiaries are, what the burial expenses are, and what the medical bills for treatment are. If there are dependents of the deceased these dependents must be identified and included in any litigation. Any and all beneficiaries should likewise be identified and include them in any litigation.

It is helpful, if possible, to determine the extent of insurance coverage on a given case as well. Sometimes, there just is not sufficient insurance coverage to warrant what might otherwise be done with a claim. Unfortunately, there are many defendants who are either not insured at all or have very minimal liability limits on their insurance policies such that it makes it unlikely that there will ever be enough money to satisfy all claims that can be made. Therefore, if the amount of policy limits can be obtained, which may not be easy prior to filing suit, it can sometimes lead to the client mitigating losses as much as possible.

Physical damages sometimes are the easiest damages to document. There have been so many advances in record keeping in the last few decades that physical damages can be determined by various medical records, reports, billing codes, diagnostic testing, physical examination notes and the like. If the medical records from a Primary Care physician are kept by hand written note, it may become necessary to have the physician have the hand written note typed for future reference. Similarly, if the record or notes do not sufficiently address the problem that one is trying to prove, a special request of the treating physician may be in order to make sure the injured party is able to adequately put forth all his injuries.

The experienced attorney should always make sure that any hospital records are complete when received. For example, sometimes pathology reports are not included in submitted records. These reports can be very revealing to determine if perhaps the client had been under the influence of alcohol of an illegal drug. The attorney would most certainly want to know that before filing suit rather than having that used against the client in cross examination. Moreover, if a case does go to trial, the hospital records can assist a client in trial preparation as the complaints offered at the emergency room are often, but not always, the dominant complaint throughout the course of treatment.

Since it is the client’s burden to prove both liability and damages, it is important for the attorney to make sure that the medical records do support the claims being made. At some level, the attorney will be required to establish that the medical treatment received was fair, reasonable and causally related to the accident involved. If there are other explanations for the claimed injuries instead of the accident, the attorney should address those other explanations with the treating physicians to determine what is and what is not related to the accident involved. It is much better to accomplish this causal relationship early in the treatment regimen rather than be surprised later.

When preparing the client for trial, it is important for the attorney to make sure that the client recognizes what is in the medical records. For example, if there is a pain scale suggestion in the medical record, the client should not guess at a pain scale many months later when the memory fails. If the client provided a pain scale to the medical provider on a certain date, the jury will believe what was told on the actual date rather than what might be said later. This affects credibility if there is an inconsistency.

If there are good photographs of the injury they should be shown to the jury. Often, an injury looks more significant immediately after the accident than it does in court. Bruising, swelling and abrasions are often well healed by the time a trial is reached. A jury will get a much better understanding of the pain involved in an accident if there are early photos of the injury.

If there is permanent damage documented by medical testimony there are life tables that can be introduced into evidence to establish the life expectancy of the client. This proof allows a per diem argument for pain and suffering. Without the life tables, the jury will only be able to speculate how long the plaintiff will live and the judge will tell them they are not allowed to speculate.

At a trial on damages the experienced attorney will decide what, if any, experts to call as expert witnesses. Of course, these experts will have to have been identified early on in the litigation according to a scheduling order or they will be excluded from testifying. There are many different types of experts who could be involved in litigation. Obviously, medical professionals are the experts most frequently used. These experts are absolutely required in order to prove damages. There are certain magical questions that need to be asked of and answered by the medical experts, Primarily, the attorney must ask the medical professional about the history provided of the accident by the client, the subjective complaints of the client, the examinations conducted and the results of the examination, the objective findings, the results of any diagnostic testing, the diagnosis, the treatment plan and the prognosis. If permanency is claimed, the medical expert must be asked about the permanent injury. The expert will need to testify that all the alleged injuries are causally related to the accident and the treatment and medical bills are fair, reasonable and causally related to the accident.

There are occasions where a treating physician is not available to testify. Under those circumstances, it is permissible for the attorney to retain another qualified expert to review all the medical records and bills and testify according to those records to the same degree as if the expert had been the actual medical provider in the case.

There are occasions where an attorney may want to call a nurse as an expert witness. If this occurs, the questions must be restricted to his/her expertise as a nurse. A nurse, for example, could not testify about medical opinions that are reserved for a doctor. Similarly, sometimes an attorney may wish to call a physical therapist as an expert. If this is done, the questions asked must be phrased towards the expertise as a physical therapist as opposed to a medical doctor. In other words, the expert must be qualified to testify about a particular thing because of education and/or experience. Most courts will allow a general practice doctor to testify about orthopedic issues since the testimony actually goes to the weight of the evidence rather than the admissibility. It is usually better to have a specialist testify where possible.

Usually one or two medical experts are sufficient in most cases. If the expert is in a very specialized field however, it may become important to consider using more experts. For example, a physiatrist, acupuncturist, holistic provider, chiropractor, anesthesiologist, pathologist, radiologist or other specialized field may prove to be particularly helpful in some cases rather than just relying on one physician, particularly if that one physician does not qualify as an expert in the field of the specialist for whatever reason. A good example of that is, for example, where a chiropractor may not qualify as an expert in the field of orthopedic surgery even though they are very similar specialties except that a chiropractor does not perform surgery.

In cases where there is a significant lost wage component or loss of earning capacity component or where there is a need for specialize future medical care, it may become important to utilize the services of a life care planner and/or an economist. A life care planner can analyze the future needs of a client based upon existing medical reports and the prognoses provided by the medical experts. The economist can do what is called reduce the cost to present value (which is required under the rules of evidence) and provide the necessary expert testimony to establish future damages.

In other cases, a personal injury lawyer may wish to call as an expert a biomechanical engineer if the evidence suggests such an expert would be necessary. There are also experts known as human factors experts who can identify how humans normally react in certain situations. Each case is decided on its own particular facts and the experienced attorney addresses the experts needed based upon the facts of each case. A major consideration in all cases is to make sure the value of the case warrants the expenditure of money for the expert considering what added value the expert may bring to the case.