Damages for Elderly Clients by *Jon Gowen, Bruce J. Klores and Scott M. Perry
Cases involving the elderly present a
variety of damages limiting challenges. In this article, we will try to share our insights, and those of others, to help clear these hurdles. When we approach a tragic case in-
volving a young child who will need a lifetime of care, our damages analysis alone justifies investigation, since a lifetime of medical care can result in a large and generally uncapped damage award. Likewise, the death case of a forty-year-old high-income earning cor-
porate executive with two kids presents large uncapped numbers. Both of these cases allow us to “put up” big numbers so that we need not rely solely on often capped “pain and suffering” damages as the linchpin for the case’s value. In contrast, consider the case of a
seventy-four-year-old retired physician whose seventy-year-old wife died several days after open-heart surgery when an intensivist punctured her pulmonary artery with a monitoring catheter. The widower has lost no income as a result
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“Ajury consists of twelve” persons chosen to decide
of his wife’s death and he has incurred no medical bills. If the claim arose in Maryland in 2007, the estate’s claim for pain and suffering, which could not have gone on for more than five days, is capped at $650,000 based on Md. Code Ann., Cts. & Jud. Proc. §3-2A-09. Because the wife was already ill and had “normal” post-operative pain anyway, the defense will attack even this aspect of the case. Many of us would decline this case
because of the difficulties in proving damages and the uncertainty of both its settlement value and verdict potential. Declining such a case, especially in a traditionally high defense-verdict venue, and in a state where damages are capped, seems entirely reasonable. Now let us add a few facts. The dece-
dent was married to the husband for 50 years. She was the first girl he had ever dated. When they immigrated here from Columbia over 40 years ago, she taught him to speak English, so he could pass his medical boards. She was not only his wife, but also the registered nurse of his medical practice. They had three children together and many grandchil- dren. Would you take the case now? We
would, and we did. And the result was terrific even in a very conservative Mary- land County. The lesson in this example is that while
cases involving the elderly may have sig- nificant “special” damages limitations, they can have tremendous appeal if the lawyer is sensitive to, and willing to explore in the office and throughout the litigation, the rich experiences that come with age. It is an intangible, yet important factor that, when presented properly, a jury cannot ignore.
* Photo not available 48 Trial Reporter Summer 2007
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