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PROOF OF DAMAGES Damages for a serious permanent injury, even one which does not involve a significant period of hospital time, will almost always be above $100,000, often into the millions, perhaps in excess of $10,000,000. As with most personal injury cases, damages fall into primarily the following categories: 1) Medical Bills, including past and future; 2) Vocational Damages, including past and future lost earnings; 3) Life Care Costs; 4) Loss of Enjoyment of Life/Hedonic Damages; and 5) Pain and Suffering. 1) Medical Bills. If there was an extended hospital stay and rehab, medical bills will typically range above $100,000; often approach half a million. Getting medical bills paid is usually the financial issue that causes the most anxiety for the family members of the survivor. But don't fall prey to the insurance adjuster who shows up within days of the injury, with the seemingly generous offer of taking care of the medical bills. Insurance adjusters are not to be trusted. They are your adversaries; think of them as the enemy. Such a promise comes at a cost; they will want you to waive your claim for other damages. Never sign anything without talking to an experienced personal injury attorney first. In most situations, urgent and critical care must be provided to the survivor regardless of ability to pay, and medical insurance and medical assistance are there as primary sources of payment of medical bills. One common mistake that is made with personal injuries that do not involve substantial medical bills, is that people and inexperienced personal injury attorneys believe that damages should also not be substantial. Insurance adjusters like to multiply medical bills in valuing a case. There may be no relationship between the size of the medical bills and the extent of the disability and damages. 2) Vocational Loss. We use the term loss of earning capacity in rather than the term lost wages. A plaintiff is clearly entitled to all of his or her lost earnings, as an element of damages. The tricky part is measuring how much that loss is going to be in future terms, especially if the survivor has returned to work, or was a child who had never entered the employment market. With injured persons, the employment losses are often subtle, as the survivor frequently has success in getting jobs, especially is they don't disclose the injury. Rarely will a physician place specific functional limitations on what a severe injury survivor can do in the workplace. And if a survivor's deficits are too subtle to be noticed by prospective employer, they often have success in getting hired. Unfortunately, they typically do not have the same success in retaining employment. Fatigue, disinhibition, poor anger control and the inability to learn and adapt to an ever changing job will often result in short job tenure. It is like what Mark Twain said about smoking: I can quit anytime I want, I have done it a thousand times. The survivor can always get a job, they have done it dozens of times. The problem with employment and quitting smoking is the same, making it stick. Another element to consider in evaluating a survivor's loss of earning capacity is the likelihood that the survivor will be prematurely disabled as a result of his or her disabilities. Statistically, if a person meets the definition of occupationally disabled, they will have a shorter working career. With even a mildly brain injured person, this shorter working career can add up to numbers into middle and high six figures. For example, if you were making $50,000 a year in a profession in which you can no longer work, and you had a work expectancy of 30 years, you would have a $1,500,000 loss of earning capacity. But lets say you were a college student who would have made $50,000 a year at age 30, and would have worked until 65. As a result of a brain injury, you can only make $15,000 and you meet the definition of occupationally disabled. Instead of a steadily increasing income, you now have no prospects for advancement. Statistically, you will likely to be out of the job market by age 45. Your loss would be the difference between what you are making and are likely to make in the future, and what you would have made had you not been injured. Now your earning capacity for your lifetime is $375,000 versus $2,250,000, if you had not been injured. Your loss of earning capacity, which you should be able to persuade a jury to accept, is $1,875,000. It is imperative that the vocational expert understand the nature of the future losses, even if you are working at present, for you to get the maximum recovery. The vocational loss is perhaps the most important number in valuing a case, even if it is not the biggest number. Juries are very sympathetic to this type of "hard" number. A simple question in selecting the jury: "Sir, what would it cost your family to replace your weekly earnings over your lifetime," helps the jury understand that this number is concrete. If the vocational loss extends into the middle or high six figures, the jury will likely be sympathetic to valuing the rest of the elements of damages comparably. 3) Life Care Plan. Life care costs are often classified as future medical bills, with a physician the one testifying as to the amount. However, we believe that is a terrible mistake. First, physicians are not economists. They do not take this part of their testimony seriously, and are clue less as to the true magnitude of the future costs. Second, life care costs are more than medical bills. They represent the out of pocket and imputed costs that come with an guaranteeing the highest quality of life to the survivor. They include rehabilitation, substitute household services, even the value of the time invested in care by the family members and spouses of the loved ones. Too many lawyers do not understand that the plaint if still has suffered this type of damage, even if family members provide all this care. Such care has a value, regardless of whom is providing the service. The outstanding life care expert, not only is able to quantify the extent of the life care cost, he or she can open the juries eyes to the full extent of the survivor's loss. 4) Loss of Enjoyment of Life or Hedonic Damages. The term hedonic, from the Greek word meaning pleasure, is used to describe damages stemming from a survivors loss of enjoyment of life. In a brain injury, the loss of enjoyment and satisfaction of life is often the single biggest element of damages, especially if the survivor does not have significant pain as a result of the injuries suffered. The hedonic damage expert uses a comparison to what value our free market has placed on a human life, to quantify, in terms of dollars, usually millions of dollars, what the brain injury has cost the survivor in terms of quality of life. The hedonic damage expert also plays an important role in focusing the juries attention on the quality of life the survivor had before the accident, and how the accident has changed that quality of life. 5) Pain and Suffering. Pain and suffering is always the hardest number to predict in any case, and unfortunately, it is largely dependent on the individual values of the jury members. Rather than relying on the jury to choose a large pain and suffering number based upon an impassioned closing argument, we believe that the magnitude of the other damages should direct the jury as to the value of pain and suffering. If we have proven a vocational loss of $1,000,000, a hedonic loss of $1,000,000, a life care cost above $1,000,000; we believe the jury will value pain and suffering in the same range. Without those other elements, the jury may think that an award of $250,000 to someone with a permanent brain injury, is generous. Conclusion. Do not sell your case short, or let your lawyer do it. Damages in TBI cases can be multi-million dollar, but only if your lawyer understands the special problems faced by the survivor, and employs the best experts to help him prove those damages. Not every lawyer can be Clarence Darrow, but he can and must hire the best, the very best experts, on the issues outlined above.
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