Economics Of A TBI Case

by Attorney Gordon S. Johnson, Jr.

Lawsuits cost money, even if you retain an attorney who is paid on a contingent fee basis (meaning he doesn't get paid until and if there is a recovery). What costs the serious money is the time for the expert witnesses. Almost all lawyers who handle primarily brain injury cases, and including all of my colleagues, advance these costs in the cases they are willing to take to trial.

What this means is that the lawyer must gamble anywhere from $10,000 to $100,000 of his or her own money, that you will ultimately get a verdict in your favor. And obviously, a large enough verdict that after such expenses are advanced, medical bills paid and the lawyers get his percentage fee, there is money left over for you.

Let's take a hypothetical case as an example. Let us assume that someone in their mid thirties, who is making $40,000 a year, has suffered a brain injury from being rear ended in a car accident, which has made it more difficult to work and has involved $5-$10,000 in medical bills in the first 6 months and no recognition from treating physicians that any further treatment was needed.

Now if you took this case to a typical personal injury lawyer, they would look at the level of medical bills, perhaps try to quantify actual loss time from work and value the case in the $50-100,000 range. A $50,000 settlement of this case before a trial was started, would be distributed as follows:

$50,000:

• $16,666 atty fees is 1/3 (normal is 33-40%)
• $ 200 costs advanced (probably for medical records)
• $10,000 medical bills
• $23,133 to the client

Now, if you took this case to someone who understood brain injury, the result could have been different.

First, that lawyer should have done a detailed interview with you and your family, to determine whether the medical diagnosis by the treating physicians, addressed all of the problems you were having. The critical issue to look at would be whether you had been changed by your injury, with a particular focus on brain injury symptoms.

If it was determined that you did have problems that had not been identified, he or she would find a way to get you to a doctor who understood something about non-coma brain injury. Ultimately, you would be seen by a neuropsychologist, who if warranted, would give you a full battery of neuropsychological tests. Unless you had a very good insurance policy, the attorney would pay out of his own pocket, the costs of this exam, usually $2-4,000.

If this exam indicated significant deficits which were caused by the accident, then additional experts would be retained. The reason is that the MD and Ph.D. will tell us what problems you are having, but will tell us nothing about how such problems effect the dollars and cents of the case. It is from the other experts that the damages flow. Any lawyer who tries a TBI case without damage experts, expecting the jury will award enough in pain and suffering, will be disappointed by the results.

Damages:

Loss of Earning Capacity. The first focus on the damages is the vocational expert, this is the expert who will tell us whether the deficits that have been identified will effect the survivors future "earning capacity." If this survivor has problems with fatigue, memory, disinhibition, anger management, frustration, background noise, concentration, balance, etc, they will likely have a loss of earning capacity. In most cases, the loss of earning capacity will be some percentage of the current earnings, and then likely a total loss 10-15 years from retirement age. This is because disabled people, not only make less during their younger years, they unequivocally leave the work force (retire) much earlier. Now instead of our nominal lost wages in the first hypothetical, we would probably have a total loss of earning capacity of something like $15,000 per year for 12 years, and $40,000 for 15 years. (This assumes the persons works at a diminished productivity until they are in their late 40's and is totally disabled thereafter.) Now the loss of earning capacity is $780,000.

Life Care Costs. Now, there may also be a need for future medical care, prescriptions, and also help with the activities of daily living. This is where the second expert, the "life care planner" comes into play. This person will look at the identified deficits in the medical records, and put a number on the costs of actual therapies to address the deficits. Obviously, if an in-patient treatment program is warranted, the costs will be substantial. The subtle part of this, and the part too often missed, especially if the survivor is married, is the attendant care costs. Many survivors, even non-coma survivors, cannot live independently without risk to themselves. If there is a spouse, or parent, then this may not involve current out of pocket expenditures. But a good life care planner will incorporate the costs of attendant care into their damage estimate, for two reasons: one, that whether or not these services are actually paid for, they still have a price. This wasn't what the life of the family member should have been like, and they have a right to be compensated for providing this care. Two, there is no guarantee that this family member will be available to continue this care. Parents die and marriages, in a very high percentage of cases, end in divorce. The cost of a life care plan will often exceed $1,000,000, but for the sake of our example, lets assume that here it is $400,000.

Pain and Suffering and Loss of Enjoyment of Life. In most jurisdictions, you don't get to hire an expert to testify about the value of pain and suffering, but in many jurisdictions, you can retain an expert to testify about the loss of enjoyment of life. Sometimes called the hedonic damage expert, this expert uses economic studies to conclude that a human life has a certain value and that the survivor's quality of life has been reduced by a percentage of such total. Such loss can range from low six figures into something far above a million dollars. For purposes of this example, I will assume that an expert was retained and that expert testified that the loss of enjoyment of life in this case was comparable to the loss of earning capacity of $780,000.

Now, when we do our summation for the jury, the jury hears the following damage numbers:

$25,000 Current medical bills (because now you gotten some care)

$780,000 Loss of Earning Capacity

$400,000 Life Care Costs

$780,000 Loss of Enjoyment of Life

$750,000 Pain and Suffering

$2,735,000 Total Damages

Now if you have a good jury and your attorney and witnesses have been persuasive, you may get something close to this figure, or the jury may give you something far less.

Now if there is a large insurance policy or collectable defendant (such as a large corporation), and provided there isn't an appeal everyone on the plaintiffs side of the table will be happy. But now, instead of $200 out of pocket to collect medical bills, your attorney has spent $50,000 - $100,000.

But if there was a small policy, or a relatively small verdict, the recovery might be worse than if there had been an early settlement.

These basic facts are variable for each and every case. In a coma case, the damages would obviously be much easier to prove, although not necessarily that much higher, with the exception of the medical bills.

No lawyer, can afford to take a case if he or she cannot see that there is enough chance to recover substantial damages to pay the out of pocket costs of going forward. The greater the risk of losing the liability aspect of the case (meaning you recover nothing) the less likely a lawyer is going to be to expend these sums of money to take a case to trial.

Much criticism is made of the contingent fee system, which allows a lawyer to make a substantial fee if he wins and finds a way to collect the large verdict. But without this system, clients would have to pay their own out of pocket costs, and only the best cases and only the clients who could afford to hire an attorney with their own resources, would be represented.

And believe me when I say, that without the expert witnesses, no jury will ever understand the full cost of disability.

Understanding Subtle Brain Injury

The concussions that disable, are almost always more symptomatic at 24 hours, than at the 2-4 hour time frame when injured persons are evaluated in the emergency room. Brain injury symptoms escalate over the first 24 hours, because brain injury involves a cascade of events. It is critical that if you are still symptomatic the day after your injury, go back to the same Emergency Room, don’t wait for a doctors appointment. It is critical that the Emergency Room personnel see that the symptoms still persist or have gotten worse.

Contact the Brain Injury Law Group: 1-800-992-9447

This site is brought to you by the advocates of the Brain Injury Law Group, a community of plaintiff's trial lawyers across the United States united by a common interest in serving the rights of persons with traumatic brain injuries and a common commitment to fully understanding the anatomic, medical and psychological aspects of TBI.