SC Lawyer, Sepetember 2011, #5. Admissibility of Evidence of "Possible" Future Medical Damages and Anxiety Over Possible Future Medical Condition or Treatment.

• Author: By Daniel R. Denton

South Carolina BAR Journal

2011.

SC Lawyer, Sepetember 2011, #5.

Admissibility of Evidence of "Possible" Future Medical Damages and Anxiety Over Possible Future Medical Condition or Treatment

South Carolina LawyerMarch 2011Admissibility of Evidence of "Possible" Future Medical Damages and Anxiety Over Possible Future Medical Condition or TreatmentBy Daniel R. Denton In many personal injury cases, the plaintiff's treating physician will discuss with his or her patient the possibility of future surgery or other medical treatment that may become necessary if the patient's condition worsens, or to improve (or maintain) plaintiff's present condition. Defense counsel will undoubtedly argue that such information is inadmissible unless the doctor's opinions are based upon "reasonable medical certainty" or that the related medical expenses are "reasonably certain to occur." However, in an appropriate case, strong arguments can be made that testimony about plaintiff's possible future medical condition and anticipated need for medical treatment in the future is admissible as to: 1) the future related medical expenses the plaintiff may incur; and 2) plaintiff's fear and anxiety about possible future worsening of conditions, medical treatment and increased disability. In a case in which the facts indicate that the plaintiff may require medical treatment in the future, plaintiff's counsel should attempt to elicit testimony to establish:

* the treating physician's opinions as to plaintiff's possible future worsening or change of conditions and need for future medical treatment, or plaintiff's need for certain treatment to maintain or improve his or her present physical or psychological condition; * the type of possible medical treatments under various scenarios; * the estimated percentage chances of plaintiff having such future conditions and need for medical treatment under each scenario; * whether the physician's opinions as to future medical conditions and treatment are based upon authoritative studies or his or her own experience or both; * if a worsening of condition occurs, whether plaintiff will have any increased permanent impairments following the additional medical treatment; * the estimated cost of the possible future medical treatment (which could be based upon costs already incurred if plaintiff had received similar medical treatment); * whether the future scenarios were discussed with the plaintiff; * the physician's knowledge that most patients experience fear and anxiety after discussing possible future medical problems and need for more treatment; and * the plaintiff's concerns, fear and anxiety about his or her future medical condition and possible need for future surgery or other treatment based upon the information discussed with the physician.

In the appropriate case, the case law discussed below can support plaintiffs' counsels' arguments for the admission of evidence relating to future medical damages.

Admissibility of evidence of possible future medical expenses does not require proof that such expenses are reasonably certain to occur.

Any question as to the factual basis of an expert's testimony regarding future damages goes to its credibility, not its admissibility; the credibility of evidence is properly a question for the jury. Weaver v. Lentz, 348 S.C. 672, 561 S.E.2d 360 (Ct. App. 2002) (expert's opinion as to economic calculations of future lost earnings held admissible).

The standard of admissibility for evidence of future damages is "any evidence which tends to establish the nature, character, and extent of injuries which are the natural and proximate consequences of the defendant's acts ... if otherwise competent." Pearson v. Bridges, 344 S.C. 366, 372, 544 S.E.2d 617, 620 (2001), quoting Martin v. Mobley, 253 S.C. 103, 109, 169 S.E.2d 278, 281-82 (1969) (Martin court held admissible plaintiff's doctor's testimony as to percentage of permanent disability which generally follows the type of surgery he performed upon plaintiff, where doctor had not further examined the plaintiff after her discharge from care, with the court concluding that this affected only the weight and not theadmissibilityof the...