future-care

In many car accident cases, a component of the loss that a plaintiff suffers will be the costs that they will have to pay to fund care that will be necessary in the future due to the injuries that they have suffered in an accident.  Reasons for judgment were released on Monday in the case of Watkins v. Harder, a decision which in part considered how the amount that is awarded to a plaintiff for the costs of care that will be incurred in the future is assessed.  The plaintiff in this case was injured in a car accident that had happened four years prior to the trial.  At the time of trial the plaintiff continued to have chronic pain in her neck and back.  A portion of her claim included the cost of ongoing attendance at a gym, physiotherapy and medications.  In considering this claim, the trial judge quoted from the decision of Dzumhur v. Davoody in which the principles of law relevant to future care costs were summarized as follows:

  • the purpose of any award is to provide physical arrangement for assistance, equipment and facilities directly related to the injuries;
  • the focus is on the injuries of the innocent party…Fairness to the other party is achieved by ensuring that the items claimed are legitimate and justifiable;
  • the test for determining the appropriate award is an objective one based on medical evidence;
  • there must be:  (1)  a medical justification for the items claimed; and (2)  the claim must be reasonable;
  • the concept of “medical justification” is not the same or as narrow as “medically necessary”;
  • admissible evidence from medical professions (doctors, nurses, occupational therapists, et cetera) can be taken into account to determine future care needs;
  • however, specific items of future care need not be expressly approved by medical experts…It is sufficient that the whole of the evidence supports the award for specific items;
  • still, particularly in non-catastrophic cases, a little common sense should inform the analysis despite however much particular items might be recommended by experts in the field; and
  • no award is appropriate for expenses that the plaintiff would have incurred in any event.

Future care costs, particularly in a catastrophic injury case, are a vital component to ensuring that the plaintiff is fully compensated for the injuries that they have suffered in a motor vehicle accident.  This summary of how future care costs are determined provides a great blue print for ensuring full compensation.