simply keep running it up to make more money.
In a recent case, litigated by the
author, counsel was able to overcome a similar argument by calling the treat- ing physical therapist who explained that when the plaintiff was originally discharged her level of function was only at fi fty (50%) percent, and she still had a signifi cant amount of pain. The physical therapist was able to corrobo- rate our trial story that the plaintiff was personally responsible, and exhausted all conservative treatment fi rst, and then had to return for more extensive, and more expensive treatment after trying to heal on her own with time and home remedies.
Future Medical Care Is there a way to fi x or help the plain-
tiff ’s pain or level of impairment? The basic foundational requirements
are the same as with each of the elements for past medical expenses, but there are a few extra considerations surround-
ing the area of medical necessity. The character of the future medical expenses and associated treatment must only be shown with reasonable certainty (ie. that it is probable the loss will occur).3 Expert testimony is required to prove causation of the care, probable necessity and the reasonableness of the care. In order to persuade the jury to pro-
vide award money for future medical expenses, the plaintiff ’s attorney must establish the worthwhileness of the fu- ture care. One must establish through the expert: • why the future treatment is neces- sary;
• what the goals are; • how the care will be delivered; and • why it will help the plaintiff ’s level of functioning and relieve pain. The jury will decide to provide money to fi x or help only if they are persuaded
3
Lewin Realty v. Brooks, 138 Md. App. 244, 771 A.2d 446 (2002).
that such an award will be worthwhile. Obviously, the types of future care required by the plaintiff can vary. In a chronic pain case, the care can consist of future pain management including prescription medications, injections, or medical devices (ie. morphine pump). The future care may consist of surgery and/or physical therapy care. One often overlooked type of future
economic loss is a claim for the future cost of prescription medication. If the client is permanently impaired and will be required to take anti-infl ammatory or pain medication on a regular basis for the rest of their life, one should attempt to have their treating doctor opine as to what medication they will permanently need, and why. The cost of prescrip- tion medication on a permanent basis will be signifi cant. One should obtain all information on fi le at their client’s pharmacy. In order to properly present a future medical care claim, you may also have to retain a life care planner to testify to the cost of the medical care, medi-
Dr. Jonathan Kramer & Associates, LLC (410) 358-7043
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www.kramerpaincenter.com Trial Reporter
Winter 2009
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