In routine personal injury cases, juries award damages for past medical expenses, wage loss, and pain and suffering. Since jury awards can be predicted by comparing the plaintiff’s case to verdicts returned in similar cases in the same area, most cases settle.
Catastrophic injuries, including traumatic brain injuries, present unique challenges to lawyers for both plaintiffs and defendants. When an injury is life-changing, juries focus on the future rather than the past. An injury victim who will be living with a seriously disabling condition for decades will seek damages that are categorically and quantitatively different from the damages sought by victims whose injuries are expected to heal.
Measuring Future Losses
Measuring losses that have not yet occurred can be challenging. Cases are more difficult to settle when there is no clear yardstick for measuring damages. Life care plans are essential tools that provide juries with an objective measurement of future losses.
Juries that have no objective basis for assessing damages might return a verdict that is shockingly high or low. Verdicts are vulnerable to a motion for remittitur or additur or to a motion for a new trial when a damages verdict is not clearly grounded on evidence. Life care plans allow juries to return evidence-based verdicts.
Juries typically award a multiple of other damages for pain and suffering. Experienced lawyers for both sides can make reasonable guesses about the multiplier a jury might use. Providing juries with a basis for computing future economic damages creates an indirect basis for awarding damages for future pain, suffering, and emotional distress.
Everyone understands that sympathy may influence jury verdicts, even when juries are instructed to base verdicts on evidence rather than sympathy. Judges tend to defer to juries, but a verdict that is not clearly founded on the evidence might be overturned if a judge suspects that it was the product of sympathy. Introducing evidence of an injury victim’s future needs can help lawyers insulate verdicts against charges that the verdict was so irrationally excessive or inadequate that it must have resulted from sympathy or prejudice.
Catastrophic Brain Injuries
Expert witnesses usually prepare life plans in cases involving catastrophic injuries. While there is no legal definition of the term “catastrophic injury,” lawyers usually regard an injury as catastrophic when it is severe, permanent, and drastically impairs the injury victim’s ability to return to his or her previous lifestyle.
Most catastrophic injuries involve the brain or spinal cord. Amputation of multiple limbs or injuries that cause a loss of vision in both eyes are also regarded as catastrophic.
In the United States, brain injuries are a leading cause of death and disability in young people. They can be caused by car crashes, falls, gunshot wounds, and severe or repeated blows to the head.
Military doctors tend to regard a brain injury as catastrophic when it results in a permanent loss of all brain function above the brain stem level. Lawyers who bring or defend against personal injury claims do not limit the term “catastrophic” to injuries that cause brain death or a persistent vegetative state. Rather, a traumatic brain injury is generally regarded as catastrophic when the injury victim’s ability to live independently has been significantly compromised.
Brain Injuries and Life Care Plans
While jurors can often picture themselves in a wheelchair or living without eyesight, it can be more difficult to relate to brain injuries. Brain injuries affect accident victims in so many different ways that jurors do not intuitively comprehend how they will change an accident victim’s life. Lawyers use a variety of techniques, from medical testimony to “day in the life” videos, to explain the impact of a particular brain injury in ways that the jury will understand. Experts in life care planning are part of that toolbox.
Some victims of catastrophic brain injuries lose so much brain function that, while conscious, they depend on others for their daily care. Many victims of brain injuries that cause a severe disability will spend their lives in an institution. The need for institutional care is assessed by doctors while cost options are quantified by life care planning experts.
When a brain injury victim must live in a residential care facility, the cost of care is usually the largest component of a life care plan. That cost may depend upon the nature and quality of care that the victim needs or that the victim’s family wants the victim to receive. Life care plans and cost estimates might therefore differ, depending on assumptions about the institution that will provide the care and the services that the victim will receive.
When it is possible for a brain injury victim to avoid institutionalization, life care plans will typically consider the costs associated with living in a residential setting. While it might be a misnomer to say that victims of serious brain injuries can live independently, many victims can at least live in their own home, in a home they share with family members, or in a group home.
Brain injury victims who are not institutionalized need varying levels of care. A life care planner must assess the individual needs of the victim. That assessment is based on medical records and interviews of the victim, family members, and individuals who are responsible for the victim’s care.
The expense of future medical care may be included in a life care plan, although future complications can be difficult to predict. It is nevertheless necessary to assess the likelihood and frequency of future medical treatment, including the need for ongoing psychiatric evaluations and treatment.
Costs that can be anticipated with greater certainty involve rehabilitation. During the initial stages of recovery, rehabilitative services may be provided in a rehab hospital. As the victim makes progress, those services may be provided on an outpatient basis, in a comprehensive day program, or in an independent living center.
Home-based or outpatient rehabilitation may involve periodic visits with speech therapists, vocational rehabilitation specialists, teachers, psychotherapists, and physical or occupational therapists. Depending on the degree and nature of the disability, rehabilitation may need to focus on personality changes, social support, or adjustments to physical disabilities caused by the impairment of brain functions.
Each case is different. Life care planners understand the need to treat each accident victim as a unique person with unique needs. An expert in life care planning helps lawyers by identifying and exploring a variety of options for a brain injury victim’s future care.