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Catastrophic Injury Cases

There is no set definition for catastrophic injuries. As long as the plaintiff did not die as a result of the accident, a catastrophic injury would include any serious life altering injury. Examples of catastrophic injuries include paraplegia, quadriplegia, traumatic brain injury, or severe burns over a large part of the pla intiff’s body. Infants can also be the victims of catastrophic injuries.

The same principles apply in these catastrophic cases as with routine cases: the best defense is a vigorous and thorough investigation of liability and damages. Depending on the injury, it might be helpful to undertake an intensive review of the plaintiff’s condition before the accident, such as looking at school grades or performance in organized team sports to establish a “base-line” of the plaintiff’s ability and performance before the accident and injury. In addition, sometimes liability issues are overlooked in these cases because the parties assume sympathy will overcome any defense. The defendant must be willing to challenge liability despite the inherent sympathy for someone with this type of injury.

There are no special rules for calculating damages in these cases. Plaintiffs are entitled to recover lost wages, lost future earning capacity, past and future medical damages, past and future pain and suffering, and disfigurement. These cases can become particularly high value because of the intangible nature of the injuries and the potential future lost income and medical expenses. For example, in a recent case in which the court upheld a 20 million dollar verdict for a catastrophic injury to an infant, the Supreme Court said: “there is no exact method by which to measure and value in monetary terms the degree of pain and anguish of a suffering human being.” The jury decides and can award large sums of money.

For a plaintiff’s personal injury attorney to recover future lost wages or reduced earning capacity, the plaintiff will almost certainly need expert testimony to prove such damages. Generally, this requires the testimony of at least four types of experts: physicians who testify about the plaintiff’s condition and prognosis; a second expert who examines the plaintiff and determines his functional capacity; a vocational rehabilitation specialist, who determines the availability of jobs matching the plaintiff’s abilities and establishes how much the injured person can expect to earn after the accident compared with how much he was earning before the accident; and an economist who will take these figures and calculate the present value of the lost future earnings. Increasingly, plaintiffs also hire long term care planners who establish the cost of the various future accommodations the physicians recommend. The economist will reduce these figures to present value as well.

If the personal injury attorney negotiates a settlement agreement with defense counsel, a court must approve the settlement of any claim by a person under a defined disability and must approve wrongful death settlements. The requirement for court approval of settlements with people under a disability applies to anyone who is permanently or temporarily incapable of taking care of his or her rights.

Alternative dispute resolution (mediation and arbitration) is often used in these types of cases. The reasons are simple: the economic stakes are so high that the plaintiff wants to guarantee a recovery and the defendant wants to prevent a large verdict. Indeed, the parties may have the same difficulty evaluating the damages as the jury, and mediation may provide the catalyst to settlement. Arbitration with a “high-low” agreement on the side (not disclosed to the arbiter) is also a possibility.

Alternative settlement payment options are commonly used in high value cases. These include structured settlements, a valuable option with significant tax benefits for plaintiffs. Defendants like structured settlements because they cost less than a typical settlement involving a single lump sum cash payment. For example, a defendant can fund a structured settlement that pays out a million dollars over, for example, ten years, with less than a million dollars. The result — defendants pay less and plaintiffs earn more and reap significant tax benefits. These alternative payments also lend security to the financial future of the plaintiff. Studies have shown that most plaintiffs spend all their recovery within five years, even when there is a multi-million dollar settlement or judgment. Alternative payment options are often overlooked, but once offered and discussed, many families and plaintiffs are eager to accept them.