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Articles Posted in Damages – Personal Injury

The California Supreme Court has ruled that a tortiously injured person who receives medical care for his or her injuries may recover medical expenses only in the amount that the plaintiff’s health insurer paid, not the amount charged by the health care provider but later reduced by a contract between the provider and the insurer.

Whether a plaintiff can recover the amount paid or the medical "charges" is a hot issue in tort law.  The California opinion falls on the pro-defendant side of that issue.

Plaintiffs have sought the right to claim the higher amount by invoking the collateral source rule. 
The California Court said the collateral source rule did not protect the plaintiff, because a negotiated discount – whether negotiated by the plaintiff or the plaintiff’s health insurer – means that the plaintiff has not suffered a pecuniary loss in the greater amount.

The Tennessee Court of Appeals has ruled that if it is undisputed that the defendant caused circumstances requiring diagnostic tests to rule out injuries, and the undisputed evidence shows that those tests were reasonable and necessary, a trial court cannot affirm a jury verdict of $0 damages.  The trial court either must order a new trial or an additur.

Plaintiff was receiving treatment for chronic lower back pain before the accident.  The physician who treated her before and after the accident testified that he “believed” Plaintiff suffered a back strain or whiplash that caused chronic headaches and aggravated her existing lower back condition.  In addition, the physician testified that medical tests, including MRI and CT scans, were necessary to rule out hemorrhaging or fractures.  Defendant’s medical expert testified that the medical tests were reasonable and necessary, but that Plaintiff’s pain was ultimately due to her preexisting condition.

The Court of Appeals agreed with Plaintiff that there was no material evidence to support the jury’s finding of $0 in damages, as the undisputed evidence established that Plaintiff was at least entitled to the costs of the diagnostic tests.  The Court of Appeals noted that appellate courts lack the authority to award an additur, and therefore remanded for the trial court to order either a new trial or an additur.

Ronald Miller has a fascinating post on his The Maryland Injury Lawyer Blog about the value of knee injury cases  

Here is an excerpt:

According to a recent Jury Verdict Research study over the last ten years, the average verdict in a serious knee injury case is 359,149. The median knee injury verdict is $114,299. Eight percent of verdicts were over $1,000,000.

The Arizona Supreme Court has reversed prior law and held  that a claim for medical expenses arising out of a personal injury to a child may be asserted by the child or the parents, but not both.

The case is Estate of Madison Alexis Desela v. Prescott Unified School District,  No. CV-10-0172-PR  (AZ  1/18/11).

Historically, Arizona law provided that the medical expense claim belonged to the injured child’s parents, who had the obligation to assert that claim within the statute of limitations applicable to adults.

The Ohio Supreme Court has ruled that a defendant in a personal injury action may introduce evidence that plaintiff’s health care provider "wrote off" certain medical charges for care given to the plaintiff.

The plaintiff was billed $21,874.80 for care received in the accident.  His health insurer paid $7.483.91 of those bills and the provider wrote off the balance pursuant to an agreement with the health insurer.  The trial judge did not permit the defendant to introduce evidence of the write-offs.

The Ohio Supreme Court reversed, saying that "’the reasonable value of medical services is a matter for the jury to determine from all relevant evidence.  Both the original medical bill rendered and the amount accepted as full payment are admissible to prove the reasonableness and necessity of charges rendered for medical and hospital care.’"  [Citation omitted.]

The Georgia Legislature imposed a cap on noneconomic damages in meritorious medical malpractice cases in 2005.   The cap is $350,000.   In a case tried in Fulton County several years ago, the jury’s verdict exceeded the cap, and the Georgia Supreme Court is now considering whether the cap is constitutional.

According to a press release from the Georgia Trial Lawyers Association and re-printed on the Atlanta Injury Lawyer Blog

“Betty Nestlehutt was the face of her real estate business,” said Malone. “Her face was so horrifically disfigured that she was no longer able to even leave her house. Photographs of her disfigurement are even too gruesome for public distribution. The damage is permanent. Years later she has to wear layers of special makeup to try to give the appearance of normalcy.”

I admire people who have the foresight and courage to pick a practice area and learn it, inside out.  I greatly admire those who share the knowledge they have to help other lawyers and the public.

Here is a fine example: Dog Bite Law by Kenneth Phillips.  He limits his cases to representing people who have been bitten by dogs and "accept [s] only cases where a person has been bitten in the face, or has become disabled — or where a person has been killed."

Kenneth shares lots of information for victims of dog bites, down owners, parents, journalists and other lawyers.  He also sells what appears to be a very comprehensive form book.  He also sells videos and books for lawyers.  For those who have relatively minor cases, Kenneth sells forms to aid the injured party in resolving his own case.  

A Virginia trial judge refused to allow a podiatrist to give causation testimony in a FELA case where a railroad worker alleged his foot problems were caused by conditions in the workplace.  The Virginia Supreme Court has agreed to hear the case.

Here is the wording of the assignment of error that  the court has agreed to review:

The trial court erred in granting Norfolk’s motions in limine to exclude the testimony of Drs. Zelen and Steffan based upon its finding that they were not qualified, as podiatrists or otherwise, to render expert opinions as to the causation of plaintiff’s physical injuries, and in subsequently granting Norfolk’s summary judgment motion based upon plaintiff’s lack of causation testimony.

Economists in personal injury cases and wrongful death cases often consider work life expectancy tables in calculating future economic losses.

As explained on this website, "[m]any laypersons (and some experts) assume that [worklife expectancy] is the number of years until the person turns 65, the historic age for full social security retirement. This assumption is incorrect for two basic reasons: many people retire at different ages (usually earlier) and the average person has some breaks in employment (perhaps involuntary) before retirement."

The factors taken into account in determining work life expectancy are age, gender, education and level of work disability.

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