Overview of Catastrophic Cases
Timothy R. Titolo
What Constitutes a Catastrophic Injury?
For many, the term “catastrophic injury” needs no definition. Most know a catastrophe when they see one. Federal law defines “catastrophic injury” as an injury whose consequence permanently prevents an individual from performing any gainful work. 42 U.S.C.A. § 3796b.Moreover, Nevada law includes a serious illness or accident that renders the employee unable to perform his/her duties and is either life threatening or requires a lengthy convalescence as a “catastrophe” for purposes of a public employee who wishes to take "catastrophic leave".Nev. Rev. Stat.§ 284.362; Nev. Rev. Stat.§ 281.153.
Types of Catastrophic Injury
Although Nevada law does not specify the various types of catastrophic injuries, the following classification from Georgia statute provides a good overview of examples of catastrophic injuries:
(a) Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk;
(b) Amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage;
(c) Severe brain or closed-head injury as evidenced by:
1. Severe sensory or motor disturbances;
2. Severe communication disturbances;
3. Severe complex integrated disturbances of cerebral function;
4. Severe episodic neurological disorders; or
5. Other severe brain and closed-head injury conditions at least as severe in nature as any condition provided in subparagraphs 1.-4.;
(d) Second-degree or third-degree burns of 25 percent or more of the total body surface or third-degree burns of 5 percent or more to the face and hands;
(e) Total or industrial blindness; or
(f) Any other injury that would otherwise qualify under this chapter of a nature and severity that would qualify an employee to receive disability income benefits under Title II or supplemental security income benefits under Title XVI of the federal Social Security Act as the Social Security Act existed on July 1, 1992, without regard to any time limitations provided under that act.
Ga. Code Ann., § 34-9-200.1.
Evaluating Liability and Damages
The Supreme Court of Nevada has held that damages in personal injury cases should be calculated based on modicum of rationality and not with mathematical precision. See Greco v. U.S., 893 P.2d 345, 418 (Nev. 1995). In Hill v. U.S, 854, F. Supp, 727 (D. Colo., 1994), the federal district court in Colorado considered the following facts in evaluating the economic damages in a catastrophic injury claim:
1. Expenses for periodical medical care that is required during the lifetime of the injured with regard to the nature of injury suffered. See id. at 730.
2. Expenses for present and future medication and supplies with regard to the nature of the injury suffered. See Id.
3. Expenses for providing and facilitating required personal care to the injured depending upon the nature of the injury. See id.at 730-31.
4. Expenses for providing psychological counseling to the family members of the injured to cope with the injured person’s demands and need and to assist them in providing care to the injured. SeeiId.at 731.
5. Expenses for appointing case management professional to assist in the planning, coordinating and supervising the care of the injured depending upon the complexity of the medical and physical care services required by the injured. See id.
6. Expenses for the special transportation facilities that the injured person’s physical impairment requires. See id.
7. Expenses for developmental assessment to monitor the developmental progress and to access the injured person’s needs. See id.
8. Expenses for rehabilitation services to give required physical therapy and other therapies such as occupational therapy, speech therapy etc., depending upon the nature of the injury. See id.
9. Expenses for special equipments required for the injured. See id. at 732.
10. Expenses for home modification that is required by the family to modify the home to accommodate injured person’s special equipments and needs. See id.
Apart from the above, economic damages are also awarded on the basis of future loss in earning capacity. See id.
Evidentiary Issues
I am writing from the perspective of a practitioner and have attempted to provide an overview of the evidentiary issues associated with litigating catastrophic injury claims, especially from the plaintiff’s perspective. My intent is not to provide an academic discussion that covers all aspects of this topic. However, for a deep and detailed discourse, please see 72 Am. Jur. Proof of Facts 3d § 363 (2007) which discusses these issues in the catastrophic brain injury context. I have used the foregoing resource as a reference point for organization and to identify key points.
Injury:
More often than not, in a catastrophic injury, particularly a traumatic brain injury, the injured person exhibits memory deficits. Even though such people cannot describe the situation exactly, the occurrence of the injury has to be ascertained by the circumstances surrounding the accident/incident. It is the duty of plaintiff's counsel to carefully analyze all available evidence about the accident and endeavor to integrate each of those facts into a cohesive narrative that shows the finder of fact that the defendant acted in a negligent manner. Plaintiff’s counsel should supplement the plaintiff’s deposition testimony with other prior statements if the plaintiff is unable to recall the facts of the accident. Counsel should be mindful, however, that such deposition testimony should corroborate rather than contradict the plaintiff's prior statements or testimony.
Elements to Establish:
The necessary elements to establish negligence by the defendant are long-established: a legal duty to the plaintiff, a breach of that duty, and damages proximately caused by the breach of duty. It is the plaintiff's ability to establish a prima facie case through circumstantial evidence which is of particular importance in claims involving traumatic brain injuries given the frequent inability of brain-injured clients to recall the specific facts surrounding their injuries. If the case is based on circumstantial evidence, the plaintiffs must present facts from which the defendant's negligence and causation of the accident by that negligence may be reasonably inferred.
Generally, causation of a medical condition and permanency of an injury must be established by testimony of medical experts. Such testimony must show that the indicators of a permanent disability resulting from the traumatic brain injury outweigh those to the contrary. Claiming damages for loss of earning capacity is generally recoverable when such loss is an immediate and necessary consequence of an injury.
Duty to plaintiff and the court’s view:
In the context of a brain injury case, whether defendant has a duty to the plaintiff is a question of law that has to be decided by the court. Once the court determines that one party owes a duty to another, it is important to know the scope and extent of the duty, namely the standard of care that the defendant had to meet and the actual care that the defendant took. Once the court has determined the appropriate standard of care, the jury addresses the factual question of whether that duty has been breached.
Further, there is no legal requirement that a jury make a damage award simply because liability is found. In determining the appropriate amount of compensation for such loss, the jury must consider the plaintiff's age and occupation, the nature and extent of the plaintiff's pre-injury employment, the value of the plaintiff's services and the amount of income that the plaintiff was earning at the time of injury. For ascertaining the damage, expert testimony is not certainly required, but it may be of assistance to the jury, especially on the issue of lost earnings. However, plaintiff's personal projection of future loss of earnings may be admitted where the future plans described by plaintiff are consistent with facts in evidence regarding his or her employment and educational history and where the plaintiff's projections are supported by expert medical testimony.
Damages:
A plaintiff may make a claim for money damages including actual damages, compensatory damages (including reimbursement for attorney fees and for retaining experts, compensation for medical injuries, subsequent injuries, disability, compensation for lost earning capacity, and plaintiff's personal projection of future loss of earnings). Any award of punitive damages is completely within the discretion of the fact-finder.
Plaintiff’s counsel should also be mindful of the duty to mitigate damages. In Nevada, the law regarding the mitigation of damages states that “[a] person who has been damaged by the wrongful act of another is bound to exercise reasonable care and diligence to avoid loss and to minimize the damages, and he may not recover for losses which could have been prevented by reasonable efforts on his part or by expenditures that he might reasonably have made.”Lublin v. Weber, 108 Nev. 452,454 833 P.2d 1139, (Nev., 1992); Silver State Disposal Co. v. Shelley, 105 Nev. 309, 774 P.2d 1044 (Nev., 1989). Defense counsel should, of course, explore any possible failure to mitigate by the plaintiff as a potential defense to avoid or reduce a damages award.
The Nevada collateral source rule prohibits the jury from reducing the plaintiff's damages on the ground that the plaintiff received compensation for his injuries from a source other than the tortfeasor. Nev. Rev. Stat. § 17.130;Bass-Davis v. Davis, 134 P.3d 103, 110-11 (Nev. 2006). Plaintiff’s counsel should be mindful to object to any attempts by the defense to introduce evidence of other sources of compensation for the plaintiff. Introduction of such evidence can lead to a new trial for the plaintiff. See Davis, 134 P.3d at 111.
Discovery and Investigation
Generally, litigation discovery is governed by Fed. R. Civ. Pro. 26 for federal trials and Nev. Rev. Stat. Rule 16.2(b)(2) for Nevada state court litigation. However, my discussion is aimed at providing an overview of some of the specific discovery issues that arise in the catastrophic injury context. For a more detailed discussion, I refer you once again to 72 Am. Jur. Proof of Facts 3d § 363 (2007), which I have used to help organize this discussion and to identify salient points for this overview.
1) Information to be obtained from the plaintiff prior to commencement of litigation:
The discovery methods in such cases require a thorough prior knowledge of all the previous incidents surrounding the plaintiff’s injury to maximize the results of the trial for the plaintiff. Discussion with the plaintiff about the mechanism of injury, resulting symptoms and long term effects serves as a primary source of information. Plaintiff’s counsel may obtain necessary information from potential witnesses such as the physicians who treated the plaintiff both prior and/or subsequent to the injury, information from the family members of the injured describing the affect, frustration, post-injury emotional distress, and information from the plaintiff’s employer, and co-workers about the changes they have noted in the plaintiff’s ability to work.
2) Information to be obtained from medical expert.
The next step in the preparation of the discovery proceedings would be to consult the expert who will be called at trial as part of the plaintiff’s case. Besides obtaining the background information of the expert, the other important information to be obtained from the expert is his prior litigation history mentioning the percentage of cases in which the expert testified on behalf of the plaintiff and the defendant and also the educational and employment qualifications. Counsel should ask the expert regarding the date, location of the first contact with the plaintiff, the occasions on which the plaintiff will require treatment, tests performed (and the nature of the tests and their purpose and results), and the treatment provided to the plaintiff. Plaintiff’s counsel should pose questions to the expert regarding the expert’s opinion about the medical certainty that the plaintiff suffered an injury, cause of the injury, signs, symptoms, complaints, whether the problems exhibited by plaintiff were the result of that injury, and whether any pre-existing conditions have been distinguished from the injuries at issue.
3) Information to be obtained from economist or other expert regarding special damages
Plaintiff’s counsel must collect necessary information from economists or other experts being called in support of the plaintiff’s claim of damages, especially in cases where the plaintiff has lost his earning capacity. Expert opinion as to the plaintiff’s lost earnings should address losses suffered as a result of plaintiff's inability to perform household tasks, plaintiff's future costs for medical care, reduction of such amounts to present value and methodology for calculating present value.
Conclusion
A catastrophic case should not be taken lightly. There are ethical and legal considerations. Damages must be explored and developed properly. An inability to finance the development of damages may make an otherwise good case bad. An astute lawyer will recognize her limitations and ask for a more experienced lawyer’s help.
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The Journal of Neuroscience recently published a study that supports relief of chronic pain as a precursor to the relief of brain injury symptoms and cognitive impairments. Those with chronic pain also experience cognitive impairments and reduced gray matter in parts of the brain associated with pain processing and the emotional components of pain, like depression and anxiety..jpg)
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Read the Full New York Times article by going to: 
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