Any time there’s a Texas medical malpractice case involving a plaintiff with a permanent brain or other serious, disabling injury, there’s an elephant in the room. The elephant is there at mediation. The elephant is there at trial. The elephant is there during appeal.
What’s the elephant?
I’ll frontload. The elephant is cost of future medical care.
For medical malpractice plaintiffs with a profound birth injury, brain injury, or other permanent and serious disabling injury, the largest line item of recovery is typically the cost of future medical expenses.
Like all other elements of damages, the plaintiff bears the burden of proving what future medical care will likely be necessary and what that will cost. To meet that weighty burden, plaintiffs typically present testimony from a life care planner.
There are life care planners from a variety of specialties, including physicians, nurses, social workers, and case managers. While all of these individuals can do a good job on the life care plan itself, I prefer physicians because they can provide the additional testimony necessary to show that the anticipated expenses are reasonably necessary because of the medical malpractice at issue in the case.
Why are future medical expenses an elephant in the room?
For a baby with hypoxic-ischemic encephalopathy (HIE, a birth-related brain injury) or someone requiring round-the-clock care because of medical negligence, the life care plan will often add up to over $10 million. Just think about how much nursing, hospital, and physician care cost, and it makes sense.
Other than the large number at issue for the reasonably anticipated future medical care, there are two reasons why this line item of damages is the focus of so much attention in mediation or at court:
• If the plaintiff dies before a judgment is entered by the trial court, then there is an overall wrongful death cap that applies to the case. Future medical bills, then, would be off the table. Instead, there would be a global cap of approximately $2 million, after a separate cap is applied to non-economic damages, including things such as mental anguish and pain and suffering.
In short, Texas law holds negligent defendants less financially responsible if the patient dies than if the patient lives and requires substantial future care. This is certainly a factor that defendants and their attorneys and insurance companies carefully consider when deciding the amount to pay to settle a claim at mediation, and even whether to settle at all.
When we retain a physician expert to create a life care plan for a permanently and seriously disabled plaintiff, we ask them to provide an opinion of the plaintiff’s expected life expectancy. Of course, it’s important for this number to be as accurate as possible because it is a significant driver for the amount of future medical care that will be necessary.
To ensure that our life care planning experts are close to the mark, we often ask an annuity expert to obtain rated age data for our clients. An annuity is a contractual arrangement with a financial company, where a person can make a lump-sum purchase for a contractual right to be paid for a set term of years or life. It’s easy to understand that these annuity companies stay in business by making reasonable and accurate estimations of life expectancy.
At a recent mediation, I directly discussed with the defense attorney how our life care planner’s opinion concerning life expectancy was reasonable and, in fact, even conservative. When I showed him the rated age data from several annuity providers, he conceded that I was correct. I believe that this type of strategy and preparation helped settle that complex case.
• The Texas tort reform statute, Texas Civil Practice & Remedies Code Section 74.503 (a), allows a defendant doctor or hospital to request that the future medical expenses be paid periodically, rather than as a lump sum.
Since this rule became law in 2003, defendants have used it as a tool to beat down reasonable settlements. The teeth in their argument ties into life expectancy. In other words, rather than obtaining the full amount of a verdict, the defendant would pay the future medical bills over time and those payments would stop upon the death of the plaintiff.
This argument lost some air based on a recent case out of the Texas Supreme Court, styled Regent Care of San Antonio, L.P. v. Detrick, which was decided on May 8, 2020. You can read the opinion here.
Much to the chagrin of the powerful and well-funded healthcare lobby, the Texas Supreme Court decided that the trial court did not abuse its discretion by ordering a small portion of a $3 million jury award of future medical expenses to be paid out periodically over a two-year period, with the rest being due in a lump sum.
The court made its decision based on the statutory language that upon a motion for periodic payments, the trial judge must order periodic payments “in whole or in part.” Deciding how to do that is left up to the sound discretion of the trial judge.
In my view, the Texas Supreme Court made a correct decision that is consistent with the legislative intent evident in the statute. More importantly to plaintiffs, though, this provides a tool to rebut defense arguments that essentially all future medical costs awarded by the jury would have to be paid out periodically. As word of this decision trickles out, I believe that healthcare defendants may become more informed and reasonable in their settlement decisions.
If you have been seriously injured because of poor medical or hospital care, then contact a top-rated experienced Houston, Texas medical malpractice lawyer for help in evaluating your potential case.
