California Personal Injury Law Case Notes : California Personal Injury Lawyer & Attorney : Kristine Meredith : The Danko Law Firm : Car Accidents & Product Liability

Of course a wife is entitled to recover against the wrongdoer who caused the death of her loving husband. But what if the husband had long ago abandoned her? Without a loving relationship or continuous support, is the "forgotten widow" entitled to any compensation at all?

In most cases, yes, because the forgotten widow or abandoned wife who has lost her husband is viewed as having lost her husband's financial support. Even if the husband had not been paying that support, the widow is entitled to compensation.

In the usual wrongful death case, an award for loss of support is based on the amount of support the widow proves her deceased husband would have provided to her in the future. But a California court has ruled that, in the case of the forgotten widow, that proof is not necessary.

The California court  in Powers v. Sutherland Auto Stage Co., considered a case where the deceased spouse had deserted his wife more than 13 years before his death. During that time, he had sent her only infrequent small checks, and for several years prior to the his death, the claimant wife had heard nothing from him and did not know his whereabouts. The spouse was entitled to no compensation for the loss of her husband's "care comfort or society.' But the court determined that the wife was entitled to be compensated for the loss of her legal right to support.

It made no difference that the wife had never attempted to enforce her rights. Her right to support was created by the marriage and would exist so long as the marriage itself existed. By causing the death of her husband, the wrongdoer deprived the forgotten widow of a right to which she was legally entitled.
 

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Some accidents result in permanent injuries that will require ongoing care for the rest of the victim's life.  The victim is entitled to be compensated for the cost of the future care now.  That's because once the lawsuit is resolved, he cannot return to the wrongdoer and ask for additional compensation.  The cost of the victim's future care is part of compensatory damages.

To prove what sum of money, paid today, will adequately cover the expenses the victim is likely to incur in the future, the victim's attorney must enlist the help of several experts:

1. The victim's current doctor or other medical expert to testify about the victim’s injuries.  The doctor will testify about the victim's current medical condition and the medical services he needs including therapy, equipment, transportation, and so on;
2.  A doctor or nurse case manager specializing in physical rehabilitation medicine to review current medical records and interview the victim and current caregivers.  When this expert is done with her work, she will create a "life care plan" which will itemize the medical services that the victim will need for the duration of his life; and
3. An economist to calculate the total costs of the future medical care set forth in the life care plan.  In determining the sum that needs to be paid to the victim today to ensure that his medical needs are met into the future, the economist will account for the inflation rate of medical goods and services, and reasonable rates of return on invested funds.

To properly gather the evidence and to work effectively with qualified experts, the victim's attorneys must have a keen understanding of their client’s injuries.  Without that understanding, there can be no assurance that amounts awarded the victim for future care will be adequate.   

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A recent study shows for the first time that post-traumatic stress disorder (PTSD) can be objectively diagnosed using magnetoencephalography (MEG), a non-invasive measurement of magnetic fields in the brain. Researchers at the University of Minnesota and Minneapolis VA Medical Center published a study this month in the Journal of Neural Engineering identifying a biological marker in the brains of those exhibiting symptoms of PTSD.  Conventional brain scans such as an X-ray, CT scan, or MRI are unable to detect PTSD.

According to one of the rearchers, Dr. Apostolos Georgopoulos,

These findings document robust differences in brain function between the PTSD and control groups that can be used for differential diagnosis and which possess the potential for assessing and monitoring disease progression and effects of therapy.

In addition to diagnosing those with PTSD, the researchers also were able to judge the severity of  the patient’s suffering. 

Attorneys representing accident victims suffering from PTSD may be able to use these imaging techniques to support their clients' claims for pain and suffering  against those responsible for causing their accidents.
 

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As discussed here, damages awarded to a victim usually include the cost of medical services. Most victims who have private health insurance may have paid very little (ie. co-payment) compared to the amount the doctors or hospitals bill to the health insurer for the services. And, the health insurer also pays a lower rate than the amount that appears on the bill. For many years, attorneys representing the wrongdoer have asked the courts to award the victims the lowest amounts --the reduced sum paid by the health insurer.

Recently, the Court has ruled in favor of the victim and awarded the higher amount -- what the doctor or hospital billed for the medical services. Put simply: the victim has paid a premium for the insurance and the wrongdoer should not receive a windfall for the victim's thrift and foresight in securing insurance. The cost of medical services include "in-kind" benefits to the health insurance companies. The victim deserves the full benefit of his insurance.

The Court has found the following information helpful in allowing the victim to recover the full amount of medical expenses:

Written agreements between the victim and the medical service providers:

• Registration Form
• Financial Agreement
• Conditions Admission
• Insurance Verification
• Amounts Collected
• Amounts Due
• Financial Counselor's Notes
• Bills from medical services providers
• Agreements between the medical service providers and health insurance company to accept reduced payments as payment in full
• Agreements between victim and health insurance company re payments and indemnity (benefits agreement, enrollment information, etc.)
  

The court may also expect the victim or a family member to present evidence of steps taken to keep track of injury-related medical bills. And a doctor will usually need to testify that the billing records were a fair and reasonable representation of the medical billings.  

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When a jury finds that a wrongdoer is responsible for the victim's injury, then the Judge will ask the jury to decide how much money will compensate the victim for his injuries.  The law refers to the compensation award as “damages” and has divided them into two categories: economic and non-economic.

Economic injuries/damages include:

·        Past medical expenses -- the reasonable cost of reasonably necessary medical care related to the victim’s injury.

·        Future medical expenses -- the reasonable cost of reasonably necessary medical care for the victim’s medical care in the future

·        Loss of earning capacity – Past and future  loss of  – the reasonable value of the victim’s loss of the ability to earn money as a result of the injury

Non-Economic injuries/damages include:

·        Pain and suffering as previously discussed here.

·        Loss of consortium -- loss of a spouse's companionship and services discussed in more detail here.

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The spouse of a victim who has been physically injured may be entitled to compensation from whoever caused the injury. The spouse may be compensated for the following  losses of family relationship also known as "loss of consortium":

• love, 
• companionship,
• comfort, 
• care,
• assistance,
• protection,
• affection,
• society,
• moral support,
• enjoyment of sexual relations
• or the ability to have children. 

The wrongdoer who caused the injury need not compensate the victim's spouse for any of the following:

• The loss of financial support from the victim,
• Personal services, such as nursing, that the spouse has provided or will provide to the victim, or
• Any loss of earnings that the spouse has suffered by giving up employment to take care of the victim.

In California the following individuals may not recover for  the family relationship or "societal" losses due to  their loved one's injury.

• A parent may not recover relationship losses for injury to his or her child,
• Unmarried cohabitants may not recover damages for societal loss.

In the unfortunate situation where a married couple separates after the accident, the spouse of the victim may seek limited compensation (ie. the loss of assistance in parenting). 

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One would assume that if a TBI victim cannot remember the injury producing event, he cannot suffer flashbacks or nightmares re-experiencing the event. Right? Wrong.

Indeed, a diagnosis of a TBI generally requires a loss of consciousness. But the victim's loss of consciousnesss does not shield him from post traumatic stress disorder, or PTSD.  Apparently PTSD can occur after a TBI, but the TBI may alter the symptoms' development.  A TBI victim's symptoms may relate to events that just preceded his loss of consciousness, or to events that occurred immediately after.  The symptoms may even relate to details about the trauma-producing event itself that the victim learned about later in his recovery.

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Even after the physical injuries have healed, an accident victim may still suffer from Post Traumatic Stress Disorder (PTSD).  She may continue to experience flashbacks, nightmares, or daydreams in which the traumatic event is replayed again and again. The person may also suffer an abnormally intense “startle response” – like a rush of anxiety that bursts from her brain and shoots to her fingertips accompanied by a rapid heart rate. Other symptoms of PTSD may include impaired memory and difficulty concentrating and insomnia (or even a fear of sleeping due to the nightmares). The trauma of the accident disrupts various intellectual and emotional processes. It is sometimes referred to as "a normal reaction to abnormal event."

PTSD symptoms are among those that may be included in an award for pain and suffering as discussed here.
 

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Most TBI victims suffer from seizures and so need anti-seizure drugs. The drugs don't eliminate the seizures, they attempt only to control them. Even if the TBI victim takes the drugs exactly as prescribed, the victim may still experience "breakthrough seizures." The seizures can lead to embarassment, social stigma and most troubling, a blackout while driving. The victim who experiences breakthrough seizures may lose his driving privileges until he is seizure free for three months or maybe permanently. A TBI victim is entitled to compensation for all seizure-related damages. So, for example, if the victim loses his driving privileges, one form of damages might be the costs of hiring a driver. And don’t forget damages in the form of pain and suffering associated with the loss of driving privileges (ie. embarassment, loss of independence, etc.).
 

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Neuropsychologist researcher and professor Erin Bigler, PhD. recently spoke about the advances in images of post-concussion brains.  As discussed here, concussions or mild traumatic brain injuries may not show up on standard MRI or CT images.  Dr. Bigler described a new technique for analyzing MRI scans called "diffusion tensor imaging" or DTI.  This technique illustrates the direction of water flow through the fiber tracts of the brain. A comparison of images between an injured group and a control group revealed differences in the fiber tracts of injured patients.  It is believed that the head injuries caused swelling or edema in the fiber tracts, disrupting their normal ability to transmit messages in the brain.  This imaging allows researchers to determine the extent of injury between the fiber tracts.  Such research will have many applications, including diagnosing and assessing the scope of damage to a mild traumatic brain injury victim.

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This week a San Diego jury found a golf course responsible for the death of a golfer who was killed after falling off an 80 foot cliff in a golf cart and awarded his family $2 million.  The golfer Edwin Payne tried to make a U-turn on the golf path but drove over a small inner curb, lost control of the cart on a slope veiled by trees, and eventually was catapulted over the cliff.  As discussed here, the property owner must  keep its property in a safe condition and warn of any unsafe conditions.The jury determined that the Pala Mesa golf course should have installed a higher curb and failed to warn him about the cliff behind the trees.  The award will be reduced by 30% because the jury assigned partial fault to Mr. Payne based upon the principle of comparative fault previously discussed here.

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Once a victim has established the he was injured by another’s wrongdoing, he must be compensated for his pain and suffering.  There is no definite standard or method to calculate pain and suffering. A victim may recover for his pain and suffering even if at trial he presents no medical bills or medical evidence.  The award must be reasonable based upon the evidence and common sense.  The following items may be included in an award for pain and suffering:

• Physical pain
• Mental suffering
• Loss of enjoyment of life
• Disfigurement
• Physical impairment
• Inconvenience
• Grief
• Anxiety
• Humiliation
• Emotional distress. 

In one of our recent traumatic brain injury cases, the judge also instructed the jury to consider:

• Loss of freedom
• Loss of ability to parent
• Loss of dignity
• Loss of independence.

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When you lose a family member, the loss feels immeasurable. But for your family’s claim, it’s important to think about all of the ways your life has been affected. The law permits the family of a victim to be compensated for loss of support, services and companionship.

Loss of support (the amount that the victim would have provided to you after his death):

• income
• retirement benefits
• gifts
• rent
• transportation
• food
• health care
• tuition
• entertainment

Loss of services:

• household duties which may range from piano lessons to mowing the lawn
• personal service, advice, training
• Funeral and burial expenses

Loss of companionship

• love
• care
• assistance
• protection
• affection
• society
• moral support
• sexual relations

Unfortunately, you cannot be compensated for your . . .

• grief
• sorrow
• mental anguish.

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