Medical Expenses
In a personal injury case, one of the primary components of case value is often medical expenses. These can be relatively simple in a smaller automobile accident lawsuit, oftentimes including an emergency room visit, appointment with a primary care doctor, and a month or so of physical or chiropractic therapy.
In more serious automobile accident cases, the medical expenses can be much greater. Visits to shock trauma, surgeries, psychological treatment, pain management medication and radiology expenses can add up quickly. For some people, medical expenses continue during and after their lawsuits, which is why judges and juries are given the power to include future medical expenses in their verdicts.
Calculating Past Medical Expenses
A plaintiff can easily calculate past medical expenses for the benefit of the judge or jury. It simply requires testimony from doctors (or agreement from opposing counsel) that medical treatment incurred after the injury was necessary, and that the medical bills were fair, customary and reasonable. In district court cases (case values of $30,000 or less), the plaintiff will often present this evidence directly with the medical bills. The defense can then submit testimony from a doctor, either live or (more commonly) in the form of a record review, to criticize the bills or the medical treatment. Or, the defense can simply argue the value of the bills without presenting any contrary testimony. It will be up to the judge to decide whether the charges were fair and reasonable.
In larger circuit court cases, the plaintiff must present this evidence through live testimony or by agreement with the other side. The judge or jury will typically have an opportunity to review the bills themselves, and can make a judgment about whether they are fair and reasonable.
Lawyer-Referred Medical Treatment
One issue that insurance adjusters, defense lawyers, judges and juries might consider when deciding on the value of medical expenses is the source of referral. Many people have some concern about the true necessity of medical treatment when a victim finds his medical provider through his lawyer. This is understandable. Some people believe that situations like this carry a potential for fraud—the health care provider gets clients directly from the lawyer, so they might have an interest in increasing the treatment or bills in order to increase the case value and to receive more referrals from that lawyer.
It’s better for clients to find their own medical treatment when possible to avoid the potential for problems. Some clients have difficulty, however, because they may not have health insurance, and their personal injury protection (PIP) insurance may be limited or nonexistent. Sometimes, the only way to get medical care is by lawyer-referred treatment to a doctor who is willing to provide treatment with the hopes of getting paid later.
Some judges will not permit testimony about how the client found his physicians, believing that it constitutes attorney-client privilege. Other judges believe that it is a proper question to ask, and the answer can be considered in deciding whether treatment and expenses were fair and reasonable.
Collateral Source: Medical Insurance
In Maryland, as an example, plaintiffs can claim the value of medical expenses even if those expenses have been paid by personal injury protection (PIP) or health insurance. This is called collateral source.
Calculating Future Medical Expenses
In order to prove the value of future medical expenses, a physician must testify “to a reasonable degree of medical certainty” that the victim will require specific future medical treatment. The doctor must also testify about fair and reasonable cost of that medical treatment.
Effect Of Medical Expenses On Noneconomic Damages
Many judges and juries use the medical expenses as a basis for the noneconomic “pain and suffering” damages. Some believe that the noneconomic damages should be determined by multiplying the medical expenses by an arbitrary number. A few decades ago, before tort reform, it was common to calculate noneconomic damages by multiplying medical expenses by a factor of three. Some people today still hold to the belief that noneconomic damages should be equal to or double the medical expenses.
In truth, those calculations are arbitrary, and cannot take into consideration the actual value of noneconomic damages. For example, a patient who has a few extra (and expensive) radiology examinations which reveal no fractures has not really had a more troubling experience than someone who did not undergo that testing. Likewise, medical treatment may be more inconvenient for a single mother of two than it would be for a retired bachelor. The value of noneconomic damages should be tailored to the specific circumstances of the case.