Public Health Law Map - Beta 5 - Medical and Public Health Law Site

usually easy to separate the medical costs of these mishaps from the patient’s
overall medical care. The more difficult cases are those in which the patient has a
self- limited or curable medical condition and suffers a severe injury from medical
treatment—for example, birth trauma cases and anesthesia-related injuries in
otherwise healthy persons undergoing elective procedures such as orthopaedic
surgery. The plaintiff may have difficulty in proving that the defendant was
negligent, but once negligence has been established, the excess medical costs are
obvious.
d) Future Medical Costs
The uncertainty of future medical expenses makes them controversial. Projecting
future medical costs requires a long-term prognosis for both the plaintiff and the
economy. Given the recent inflation rate for medical care, any projection of the cost
of care 30 years in the future will result in an astronomical number. The plaintiff’s
most certain evidence of future medical needs is the current cost of the needed
medical care. If the plaintiff requires constant care, the jury’s starting point is the
current cost of these services. To attack the plaintiff’s projections successfully, the
defendant must convince the jury that the plaintiff’s condition will improve.
Conversely, the defendant’s position is strongest when the plaintiff is not currently
in need of medical care.
Awards for future medical expenses underlie many large jury verdicts. The largest
awards are for persons who will require long-term skilled nursing care, augmented
with acute medical services. Central nervous system injuries are perhaps the most
expensive, especially given the legal assumption that the patient will have the same
life span as an uninjured person of the same age. Although respiratory and other
complications greatly decrease the average survival of severely brain- injured
patients or those with high spinal cord injuries, the law is concerned with the
theoretical possibility of a long life, not its statistical probability. It is the cost of
future medical rehabilitative services that makes birth injury cases so expensive.
e) Rehabilitation and Accommodation
The plaintiff is entitled to rehabilitation and retraining expenses. These are also to
the defendant’s benefit if they increase the plaintiff’s earning capacity or reduce his
or her need for custodial care. They are detrimental to the plaintiff’s case if they
create the impression that the plaintiff may recover from the injuries. Plaintiff’s
attorneys do not stress the extent to which their clients might be rehabilitated.
Insurance companies exacerbate this problem by not offering the plaintiff money
for rehabilitation expenses immediately. The ideal situation for the plaintiff’s
attorney is to convince the jury that the client might have been rehabilitated but for
the callous refusal of the defendant to pay the claim, but now it is too late.
A plaintiff who has been disabled or requires special care is entitled to the cost of
any housing modifications necessary to facilitate his or her care. These may be as
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