Litigating Spinal Cord and Brain Injury pt. 4
LIFE CARE PLAN
Spinal cord injury cases necessitate the retention of a life care planner. This specialist is taxed with the obligation to coordinate with all of the plaintiff’s treating physicians in order a clear medically probable future care plan is developed.
Recognizing that omission of medically necessary treatment can, and will, shorten the expected life of a spinal cord injury victim, the life care planner must exhaustively work with the plaintiff and plaintiff’s appropriate medical specialists in order to put together an appropriate plan for medical services throughout the expected life of the plaintiff.
Given that medical expenses have historically grown exponentially, it is within the area of future medical care and life care planning that defendants will hedge their liability “bets”, with forecasts of shortened life expectancy. Necessarily, where a defendant can shorten the exposure for future care costs, the defendant (and insurance company) benefits economically.
The life care planner should be prepared to justify, where possible, the expected length of the care plan itself. Benefits of each item of care must be discussed with the jury.
Again, as with wage loss, a forensic economist must take the findings of the life care plan, and place a value on the services, taking into account medical rates of inflation. The future payment stream is likewise relegated to present value for benefit of judge and jury.
VI.
LOSS OF ENJOYMENT OF LIFE
Generally not subject to expert testimony, general damages, including the loss of enjoyment of life, pain and suffering, emotional distress, embarrassment and humiliation, and psycho-social maladies, including depression, are significant elements of damage in spinal cord injury cases.
The plaintiff, depending on degree of physical impairment, is trapped in a body that does not work. The plaintiff cannot perform simple tasks. Scratching a nose is a luxury lost.
While sensation to certain parts of the body may have been lost, pain may nonetheless be experienced elsewhere. For example, bed sores which have developed in an area with sensory perception will be as painful to the spinal cord injury victim as anyone else.
Unless rehabilitation is commenced immediately, and even when it is, a spinal cord injury victim is prone to extreme depression, frustration, and at times, a lack of a will to live. While expert testimony is generally not admissible regarding the computation of a dollar amount for a general damage award, expert testimony should be used to validate depression and the emotional well being (or lack thereof), of the victim. Psychiatrists, psychologists, and neuropsychologists should be utilized to discuss the diagnosis of depression, the impact of medication and the prognosis of the plaintiff’s emotional condition.
In addition to experts, lay witnesses, including family members, close friends, relatives, etc. should be used to establish the plaintiff’s damages.
Physical disabilities in a spinal cord injury case can be disheartening. The true invisible injury, however, the general damages, are no less disheartening to endure.
Extensive time must be spent by counsel in order the breadth of the general damages is understood and communicated to the jury.
This will be concluded tomorrow.
