Catastrophic Injuries – Maximizing Recovery
Lance A. Cooper
Scott B. Cooper
[This article was first published in the Fall 2000 issue of the Verdict, a quarterly publication of the Georgia Trial Lawyers Association.]
Catastrophic injury cases present unique opportunities as well as unique challenges and pressures. As the plaintiffs' lawyers in these cases, we literally have our client's quality of life in our hands. The amount of the recovery we are able to attain for the client will have a dramatic impact on the rest of that person's life. The key in these cases is getting the jury to understand this, and the way to ensure the jury will grasp what is needed of them is to meticulously document the client's damages - from physical and mental suffering through loss of future income - and effectively present those damages to the jury. This article will attempt to provide a brief "nuts and bolts" approach to gathering and presenting proof of damages in a catastrophic injury case.
Items of Recoverable Damages
The first step in evaluating and proving up damages is to determine what type of damages are legally recoverable in your jurisdiction. In Georgia, the types of recoverable compensatory damages in a personal injury tort action are:
- Past and future physical pain and suffering;
- Past and future mental/emotional pain and suffering;
- Past medical expenses and costs of care;
- Future medical expenses and costs of care;
- Past and future lost earning capacity; and
- Spouse's loss of consortium.i
In catastrophic injury cases, each of these general categories of damages encompasses a host of specific items of damages that must be identified in order to properly prepare the case for trial. Once the items are identified, they must be thoroughly documented, and discussed below are some methods for documenting the damages.
Nuts and Bolts - Pretrial
Client contact. It may sound rudimentary, but the most important source for obtaining proof of damages is the client. Nevertheless, during the heat of discovery and pursuing the liability side of these cases, the client can often be forgotten. Regular contact with the client not only keeps the client informed as to the progress of the case, it also allows the lawyer to understand what has been taken from the client and the struggles she must face on a daily basis.
One way to ensure regular and consistent communication between your office and the client is to assign a paralegal or lawyer in the office to the client. It should be that person's responsibility to calendar regular calls to the client and to field any calls or visits from the client. Giving one person this duty will make sure this important element of representation does not "fall through the cracks," and will hopefully generate a rapport and level of comfort between your office and the client.
In the ideal world, the lead trial lawyer will be the person who has the most contact with the client. If this is not possible, the lawyer must still spend a significant amount of "hands on" time with the client and her family. For many reasons, clients will oftentimes downplay their daily struggles when describing them to their lawyers. It is therefore impossible to truly understand all of the challenges facing a catastrophically injured person unless you are there to witness it first hand.
The lawyer should make every effort to be with the client and her family during normal everyday activities. Help get the wheelchair in and out of the van. Go to a physical therapy session. Go on a shopping trip to the mall or grocery store. Spend time at the house to see how your client functions at home.
The art of trial advocacy is the ability to tell a persuasive story. The more you believe in that story, the better you can tell it, and spending time with your client will help you to become more committed to her cause. In addition, it is sometimes the small details of daily life that can best bring a point home to the jury. Unless you spend time with the client, you may miss some of these key details. In sum, having witnessed the struggles first-hand will put you in a much better position to understand these struggles and to persuasively present them to a jury so that they may also understand and empathize with your client.
Questionnaire on pre-accident daily activities. One of the crucial concepts to convey to the jury in these cases is the contrast between the victim's life before the injury and after. This is particularly true when the victim led an active, healthy lifestyle prior to the injury.
As the first step in developing this contrast, you should have the client, or a family member or friend, complete a detailed questionnaire on the client's pre-accident daily activities. This should include both work and leisure activities. Emphasize that the list should include all of the activities the client used to do, even the seemingly mundane or trivial. It is sometimes the inability to do some of the more commonplace tasks (making dinner, walking the dog, etc.) that can strike a cord with the jury.
This questionnaire should be done at the outset of the case so that the client will have a fresh recollection of what it is she used to do that she no longer can do. Encourage her to spend some time with this and to talk about it with close family members or friends so that nothing escapes documentation.
Diary of post-accident daily activities. The next step in developing the contrast between the life your client had before the injury and the life she leads now is to have the client (or a family member or friend) keep a detailed diary of her day-to-day activities since the accident. Once again, this should be started as soon as possible in the representation because the client may not remember details of her early struggle years later when the case is ready for trial.
Oftentimes, it is evidence regarding particular moments conveyed through anecdotes that best highlight the dramatic effect of the injury for the jury. A diary is critical because many of these facts that will influence a jury may be forgotten at trial, and it is this evidence that can make the difference in the size of the verdict.
Exhaust all Sources of Benefits. The job of a lawyer representing a catastrophically injured client goes beyond trying to get proceeds from the tortfeasor. There are many other potential sources of assistance, and you must help the client exhaust all of these sources. The client or her family may be eligible for assistance from, among others: health insurance, disability insurance, worker's compensation, Medicare, Medicaid, Social Security, state benefits, and private charities.
Tapping into these resources could make a great deal of difference in the client's life while the litigation proceeds. This is critical not only because it directly benefits the client in the short run, but also because the client must receive the best care possible in order to address the quality of life and longevity of life defenses that will inevitably be asserted. If your client deteriorates during the pendency of the litigation, the defense may be in a better position to argue that she will probably not live as long, thereby limiting the recoverable damages.
Meet with Treating Physicians and Nurses. The treating physicians can testify regarding their care and treatment of your client as well as her prognosis and future limitations. The nurses and therapists can also provide helpful information and/or testimony regarding the day-to-day effects of the injury on the life of the patient and what the patient has to go through in terms of rehabilitation and daily living.
Look at the medical records and notes of the treating medical personnel. Like a diary kept by the patient, these records can often provide valuable insight into the details of treatment that the doctors or nurses may overlook when talking to you.
Life Care Plan. The Life Care Plan is the centerpiece of your claim for future medical expenses and costs of care. It will almost certainly be the most significant item of damages you request and will usually run into the multiple millions of dollars. It also represents the item of recovery that has the greatest chance to affect the quality of your client's life. Needless to say, careful development of the Life Care Plan is critical.
This begins with the selection of a life care expert. This expert should have both educational and vocational experience in rehabilitation counseling and life care planning. In other words, you should look for someone who does this work with real patients outside the litigation context.
You should get the life care expert involved immediately. She should meet personally with the patient and the patient's family. This meeting should take place at the patient's home so that the expert may evaluate the conditions in which the patient lives in order to determine what the patient needs. She will also want to see the medical records.
It is also helpful if you can coordinate a meeting between the life care planner and the treating physician. First, this will give the life care planner a first-hand impression of the patient's injuries and prognosis for future functioning. In addition, the life care planner can present the life care plan to the treating physician, allowing the treating physician to "bless" or approve the plan. This will help to undermine the defense's cross-examination of the life care planner at trial.
Catastrophically injured patients have injuries that are permanent and degenerative and will therefore require lifetime medical care and assistance. The life care plan should provide for a full range of services and devices to assist your client, and each case will dictate the specific requirements or needs. Some of the items to be considered (with examples in parentheses) are:
- Home health care (nursing care)
- Medical care/supplies
- Regular medical evaluations
- Acute medical treatment
- Therapeutic services and equipment (physical therapy, adjustment counseling)
- Mobility needs and accessories (wheelchair, ramps)
- Aids for independent function (specialized bed, remote environmental control unit)
- Transportation (van with lift and tie downs, adaptive driving aids)
- Vocational/educational equipment (adapted computer, software, desk)
- Recreational needs (equipment, attendant for recreational outings)
- Architecture (home accessibility features, lift system, intercom, alarm)
The approach here is not to provide only what the plaintiff needs to "get by." The goal under the law is to put the victim as near as possible in the condition she would have occupied without the negligence of the defendant. Thus, the proper analysis should be to provide the best care possible regardless of expense. The question that should be asked of the defendants or the jury is why the plaintiff should not have the same care paid for by the defendant that the Rockefeller or Gates families would give their own disabled spouse or child.
Economist. An economist in these cases will generally serve two purposes. The first is to provide an opinion on the value of your client's loss of earning capacity and contributions to the household. With respect to loss of earning capacity, the economist will need to know your client's education and work history, including earnings, experience, proficiency, raises, promotions, and likelihood of advancement. This can be testified to by the client or, better yet, the client's supervisor or others familiar with her work history and prospects. Also included in this analysis should be the value of fringe benefits, including medical and dental care coverage, paid vacations, sick leave, pensions, employer's contribution to social security, etc. These are usually expressed as a percentage of the client's projected salary.
If you client was unemployed or too young to work, you should talk to her family or friends about her education, training, and ambition to pursue a particular career. You can also consult school records and prior experience to determine her qualifications. An economist can then testify regarding the average annual earnings in various fields on the basis of government statistical studies. To project future lost earnings, you should be prepared to offer proof of the availability of work in the chosen occupation, the prevailing wage (including overtime rates), and past and current fringe benefits.
As for lost household contributions, the destruction of a wife's or husband's services as a homemaker is an important factor in assessing damages. Whether the victim worked outside the house or not, he or she likely made significant contributions to the household. These contributions can include serving as a cook, house cleaner, chauffeur, shopper, tailor, nurse, gardener, decorator, counselor, and educator. The economist can place an hourly wage value on these services and calculate the lost value in the diminution of the services over that person's expected lifetime. Just as important for the jury, however, will be the family members' testimony regarding the emotional devastation caused by the loss of support from their wife, husband, mother, father, or child.
Based on all of this information, the economist will then need to calculate the value of the future lost earnings, fringe benefits, and household contributions. This is done by projecting the losses over the expected work life of the victim had she not been injured. Of course, inflation must be factored into this projection. Economists will differ on their inflation rates for wages, and you need to be comfortable defending your economists' inflation assumptions before the jury.
The future losses must then be reduced to present value to account for the fact that the plaintiff will be receiving a lump sum that can be invested rather than having to wait to earn that money in the future. Again, each economist will have his or her own "discount rate" used to calculate the present value. The Georgia Legislature has established 5% as discount rate which "shall be lawful" for the trier of fact to use,ii but this does not preclude the use of a different rate. If your economist wishes to use a different rate, she should also run a second set of calculations using 5% because that rate is certain to be accepted by the Court.
The second major task of the economist is to calculate the present value of the life care plan. In general terms, this is done using the same methods described above. The economist will take the figures generated by the life care planner, project them out into the future using an appropriate rate of inflation, and discount that future amount to present value. There are, however, two important differences. First, in calculating the future costs of the plan, the economist will use the total life expectancy of your client rather than the work life expectancy. To do so, the economist will consult one of the many published life expectancy tables. The tables approved by statute in Georgia are the American Experience Mortality Tables, the Commissioners 1958 Standard Ordinary Mortality Table, and the Annuity Table for 1949, Ultimate.iii
The second important difference in calculating the future costs of the life care plan versus the future value of lost earnings is the inflation rate. As many economists will tell you, the costs for medical services and supplies have been increasing at a rate considerably higher than the general inflation rate. The economist should, therefore, chose an appropriate rate (or rates) that reflect the actual rate of inflation for these goods and services.
Videos/Pictures. At trial, your goal should be to tell the jury a powerful story about what your client has lost and the hardships she will have to endure for the rest of her life. To do this, you must show the sharp contrast between your client's former life and her current life. The cliche "a picture is worth a thousand words" has particular application here.
It is one thing for your client or a family member to describe how she used to play tennis, jog, hike, or ride her mountain bike. It is another to have pictures or videos of the plaintiff enjoying these activities. You should ask all friends and family members for any videos or photos they have, and you should do this far enough in advance to allow time to organize them into demonstrative exhibits for trial. If you have no pre-injury videos, you can use still pictures to create a "video collage" that can be very effective.
These pre-injury photos/video can be contrasted to your client's present condition using a "day-in-the-life" video. This is just what it sounds like - a video that follows your client through her daily routines and attempts to capture the challenges facing someone with a crippling injury. It is best if you have this video professionally prepared, and there are many companies who specialize in creating them. Once you have these "before and after" collections, you can have them spliced together to contrast your client's pre-injury active lifestyle to her post-injury existence.
In making these suggestions, we do not mean to imply that a catastrophically injured person's life consists only of heartache and challenges. To the contrary, we are more often than not amazed by the positive attitudes and determination demonstrated by our more seriously injured clients. It is important to highlight these positive traits so that the jury may understand the character and fortitude of your client and know that she is not simply sitting back waiting to be taken care of. At the same time, the difficulties and challenges must also be presented in a way that will ensure the jury understands just what it will take to put this person back as close to where she would have been but for the tortious actions of the defendant.
Daily Activity Chart. Another effective means of demonstrating the pre-injury and post-injury contrast is to prepare a daily activity chart to use as a demonstrative exhibit at trial. This can take many forms, the most simple of which looks like a daily organizer with activities filled in under the various times of the day. If your client led a fairly active lifestyle prior to the injury, the contrast between the pre-injury and post-injury activities can be dramatic.
Friends, Family Members. It is crucial to have family members or friends testify about what your client has lost and what she is going through on a daily basis. Although the client can (and should) provide a first-hand account of her damages, having others back her up lends necessary credibility and third-party support to her story. Some jurors might believe that people should simply do the best they can with their problems and not complain to others about them. To those people, even the most seriously injured person can be thought of as a "whiner" when trying to explain her problems. The more sympathetic jurors may also prefer to hear about your client's difficulties from someone other than your client. In addition, family and friends can describe the heroic way in which your client has dealt with these injuries so that she does not have to address these issues and risk looking immodest.
Client in courtroom? Whether and when to have your client present in the courtroom will differ for every case and every client. The general strategy is to have the client present for enough time that the jury can get an idea of the injuries she has suffered and the difficulties she faces, but not so much that the jury becomes desensitized to the injuries. To minimize the impact of the plaintiff's condition, defense attorneys may often ask the plaintiff to stipulate to the plaintiff's presence during voir dire and will try to show portions of the "day in the life" video during voir dire. Because of these issues, it is not usually advisable to have the client present during the entire trial (and it may be physically impossible as well).
One effective use of your client during the trial is having a doctor use her as a model to explain her limitations. If you have a doctor who is effective in front of a jury, he can perform something akin to an examination of the client right in front of the jury in order to show them where she was injured and what her physical limitations are as a result of the injury. Done carefully and respectfully, this sort of presentation can be very powerful.
Do Not Need "Cadillac" Life Care Plan. One of the defense tactics you will almost certainly face in these cases is an attack on your life care plan as too extravagant or unnecessarily costly. Oftentimes life care planners hired by the defense will cite the fact that the plaintiff's proposed life care plan contains more expensive care and services than that provided to the average patient with the same injuries. One obvious response to this argument is that the "average" patient usually does not have the resources to pay for the care themselves and may have inadequate insurance or no insurance whatsoever. Thus, in the "average" case, the care received is compromised by the resources available.
Why should a victim of someone else's negligence be forced to make those same compromises? If the defendant's tortious actions caused your client's injuries and the defendant has the money (through insurance or otherwise) to pay for first-rate care, why should your client be subjected to second-rate care? These are the questions that must be put to the jury.
The most expensive, and therefore most contested, element of the life care plan is the nursing care. Most life care plans will include home health care of some sort, and the battle is usually waged over the issues of how much care is needed and what the caretaker's skill level should be. Most catastrophically injured persons need around-the-clock care. They usually need help getting out of bed, showering, cooking, eating, going to the bathroom, driving, etc. Of course, family members can assist with these functions and will often went to do so out of their love for their spouse, sibling, or child.
But the appropriate question is: should they have to? If a care giver is not available 24 hours a day, then the family member will necessarily be forced to perform some of these tasks whether they want to or not. You must remind the jury that the goal is to put the victim as near as possible into the position she occupied before the injury. A normal husband-wife or parent-child relationship does not require one to feed, bathe, or catheterize the other. These are tasks that should be left to a professional while the family members are allowed to provide the emotional support and companionship they provided before the injury. The only way to ensure this balance is to have around-the-clock care available.
The other issue is the skill level of the care giver - that is, whether she is a registered nurse (RN), a licensed practical nurse (LPN), or an unlicenced home health care worker. In very general terms, the required skill level will be dictated by the needs of the patient and will therefore vary from case to case (i.e., is the patient on a ventilator, does she require catheterization?). Georgia law has specific rules on what tasks require licensing as a RN or LPN, and the Georgia Department of Human Resources Division of Public Health also has guidelines on these issues.iv
You and the life care planner should consult these requirements when generating the plan. In addition, you can ask that these requirements be incorporated into the jury instructions so that the jury can make an informed decision as to what level of care is required. Apart from the legal requirements, you need to ask the jury to consider what level of skill would make your client the most comfortable. Life Span Lessened. Sometimes the defendants in these cases will argue that your economist has assumed an excessive life expectancy because people with catastrophic injuries do not tend to live as long as the average populace. You need to anticipate this possible defense and address this issue with your economist and life care planner up front. They can help you generate responses. One response is that these life expectancy statistics are drawn from the general population of catastrophically injured persons, many of whom (due to financial limitations) are not receiving the proper care. Thus, it can be argued that the statistics are irrelevant to a patient receiving proper care and that there is no basis to postulate that your client, given adequate care, has anything other than a normal life expectancy.
You can also try to highlight the callousness of this argument in your closing. Essentially, the defendants are saying that their negligence hurt your client so severely that she is going to die sooner and, therefore, they should not have to pay as much for their negligence. Although the argument may have some abstract legal merit (assuming it is supported by the facts), it is logically counterintuitive and morally questionable, and the jury needs to see that.
Representing catastrophically injured clients is a challenging and gratifying experience. Not only can it be financially rewarding but, more importantly, it is personally rewarding because your efforts can dramatically affect the quality of your client's life. In order to maximize the recovery for your client, however, it is important to focus on the damages issue early and never lose sight of its importance throughout the prosecution of your case.
iSee generally O.C.G.A. §§ 51-12-1 to 51-12-14; Suggested Pattern Jury Instructions, Civil Cases, Third Edition, pp. 77-92; Hosp. Auth. of Walker, Dade and Catoosa Counties v. Smith, 142 Ga. App. 284, 287, 235 S.E.2d 562 (1977) (loss of consortium).
iiSee O.C.G.A. § 51-12-13.
iiiSee O.C.G.A. §§ 24-4-44 and 24-4-45.
ivSee O.C.G.A. §§ 31-7-300, 43-26-3, 43-26-10, 43-26-32, 43-26-42; Rules of Georgia Department of Human Resources Division of Public Health, §§ 290-5-54-.03, .10 and 290-5-38-.06, .07.