Recovery of future medical expenses for novel treatment.

• Author: Hansen, Mark D.

FUTURE medical expenses have always been an important component of personal injury jury awards. As medical technology advances, so do awards for future medical expenses. Advanced medical techniques are being utilized more frequently, which are reflected in the escalation of future medical awards. For example, cosmetic surgeries and the use of increasingly advanced prosthetic devices have become more frequent, and this has inevitably increased future medical expenses. Courts must determine whether there will be a limitation on future medical awards resulting from novel treatment.

This article provides an overview of key themes that arise in a claim for future medical expenses, including: the standard for recovery, the defense's argument that future medical procedures are speculative, and the types of expert testimony that have proven most effective in claims for novel treatments. This article then addresses three types of novel treatment that have been the subject of recent litigation--experimental procedures, prostheses, and cosmetic surgery--and concludes by offering arguments that may be used by defense counsel in opposition to a claim for future medical expenses for novel treatments. Many of the strongest arguments against recovery of future medical expenses for novel treatments may be made in the pre-trial phase, and defense counsel should act early and aggressively to prevent recovery on unnecessary procedures.

1. The Standards for the Recovery of Damages

   1. Future Medical Expenses

      Future medical expenses do not require the same degree of certainty as past medical expenses. (1) The amount of future medical expenses does need not to be established with mathematical certainty; (2) reasonable certainty is sufficient. (3)

      Claimants who require future medical attention resulting from wrongful conduct of others are generally entitled to recover future medical expenses. Recovery for future medical expenses often depends on the degree of proof and the type of evidence necessary. An award of future medical costs must be supported by competent evidence to guide the jury in arriving at a reasonable value for such expenses. (4) In many jurisdictions, awards must be supported by medical testimony establishing that the medical treatment is needed and the cost is appropriate. (5)

      Evidence of future medical expenses should only be considered by the jury if the testimony of an expert medical witness demonstrates that future medical expenses are reasonably certain to be incurred. (6) In some jurisdictions, such as Arizona, the judge has some discretion to determine whether the probability of such an expense is necessary. (7)

   2. State Standards for Future Medical Expenses

      Most jurisdictions have pattern jury instructions or other guidelines to establish the elements of damages for physical injuries sustained by a claimant. Recoverable damages for physical injuries may include: disfigurement, disability, loss of a normal life, increased risk of future harm, pain and suffering, medical expenses, lost earnings, and caretaking expenses. (8) For example, a plaintiff must demonstrate the following to recover future medical expenses in Illinois: (1) the necessity of the anticipated future treatment; (2) the reasonableness of the expected expense; (3) that the condition to be treated in the future was proximately caused by the tort at issue; and (4) the reasonable certainty that money will be expended for future medical treatment. (9)

      It would be improper to award damages for future medical expenses without evidence showing some degree of certainty that the claimant's treatment will continue into the future. Some commentators believe that the courts differ as to the degree of certainty required. (10) One could also reasonably conclude that the courts have utilized different language to describe the same standard. Some jurisdictions insist that an award for future medical expenses must be "reasonably probable" or "more probable than not." (11) In other jurisdictions, courts have required "reasonable certainty" or "reasonable medical certainty." (12) "Positive and satisfactory" evidence is required in other jurisdictions. (13)

      In Louisiana, a claimant is entitled to recover future medical expenses if the expenses are medically necessary, and those expenses are proven by a preponderance of the evidence. (14) In Illinois, in contrast, a plaintiff can recover only those future medical expenses which are "reasonably certain" to be incurred. (15) The reasonable certainty requirement for future medical expenses will not be met if future surgery is optional or a mere possibility. (16) Contemplated surgery or surgery that is not required does not satisfy the reasonable certainty standard. (17)

      A claimant seeking to recover future medical expenses in the State of New York must offer credible, non-speculative testimony regarding the likelihood of future medical care, and the testimony must be supported by competent evidence. (18) In Texas, no precise formula exists to establish future medical costs. (19) The fact finder may award future medical damages based upon the nature of the injury, the medical care rendered prior to trial, and the condition of the injured party at the time of trial." (20)

2. Speculation

   Future medical expenses are not recoverable if they are merely speculative. (21) Evidence as to damages which are speculative or based on mere possibility is generally improper.

   Although future medical expenses must be established with some degree of certainty, they do not have to be established with absolute certainty because an award for future medical expenses is by nature somewhat speculative. (22) Personal injury claims for future medical expenses are inherently speculative because they involve costs that claimants have yet to incur. It is not speculative to award future medical expenses when there is a degree of medical certainty that future medical expenses will be necessary. (23)

   Speculative future medical expenses were discussed by an Illinois Appellate Court in Terracina v. Castelli. (24) The claimant was awarded nominal damages for a personal injury arising from an automobile collision. The claimant appealed the judgment and argued that the court erred in striking testimony of the claimant's expert witness and that the damages awarded were inadequate as a matter of law. (25) The Appellate Court affirmed the trial court's rulings and concluded the testimony relating to a potential surgery was properly stricken because the treating physician testified that it was "possible" the claimant would be a candidate for the surgery in the future. (26) The court reasoned that possible future damages are not recoverable by the claimant...