PHYSIATRIST/ PAIN MANAGEMENT DOCTOR
Q: Attorney Tully, I was involved in a rear-ender auto accident about a year and a half ago. I had to treat with a physiatrist for a long period of time. I also had to receive physical therapy for my frozen shoulder injury. Now the doctors are telling me I need to have shoulder surgery for my injuries. What value is the physiatrist/pain management doctor if I have to have shoulder surgery anyway?
A: Medicine, by its very nature, is conservative. Thankfully, doctors do not start thinking of surgery before they try all the non-surgical methods they can to try to make your pain and suffering go away.
The practice of physiatry, physical medicine and even pain management involves treating individuals who suffer from chronic non-surgical soft tissue injuries. A physiatrist is a medical doctor with a specialized knowledge of physical medicine and the pain management treatment of injuries.
Physiatrists understand the mechanisms of an injury and how these injuries, like frozen shoulders, affects your mobility.
Your physiatrist and/or pain management doctor may be able to explain to the jury why your sprains and injuries to your shoulder are permanent in nature. They can also explain that there are permanent functional limitations to your shoulder as a result of your accident.
SLIP & FALL TRIAL STRATEGY
Q: Attorney Tully, I slipped and fell on some ice on a sidewalk. As a result, I have a herniated disc in my neck and back. I also have carpal tunnel problems that the doctors say will require me to undergo carpal tunnel surgery. Do juries consider physical therapists to be credible? Would having our physical therapist at trial be helpful?
A: Definitely. For example, jury research studies have shown that physical therapists are generally more credible to juries than chiropractors. There is no question in most jurors minds that physical therapy can be helpful to an individual who suffered soft tissue injuries from a slip & fall accident.
We would definitely attempt to have your physical therapist testify on your behalf at trial concerning what the treatment and course of therapy was for your carpal tunnel injury and carpal tunnel surgery.
I have found physical therapists to be very cooperative and willing to help their patients in terms of testimony at trial.
CHIROPRACTOR CREDIBILITY
Q: Attorney Tully, I was t-boned in an intersection auto accident as a passenger. I suffered back and neck injuries from the accident. I underwent a long period of treatment with my chiropractor. Now my chiropractor is sending me to an orthopedic surgeon for consideration of back and neck surgery, due to the car collision. Are chiropractors credible witnesses in front of a jury?
A: Usually they are. There is still some question about the acceptance of chiropractic medicine by some jurors. However, by and large, jurors accept the value of chiropractors and realize that they can help your pain management of soft tissue injuries.
Many chiropractors come across very well to the jury because chiropractors can relate to them and explain, in everyday language, what you are going through with your back and neck injuries. Chiropractors can also explain how even a light impact auto accident can result in long term or even permanent back and neck injuries.
ACCIDENT RECONSTRUCTIONIST
Q: Attorney Tully, I was a passenger in the car that was hit by an oncoming truck. I suffered severe elbow injuries. Now I am told that I have to undergo elbow surgery as a result of the auto collision. The injury has also affected my jaw. I have TMJ and mandible injuries. What is the value to my case of an accident reconstructionist?
A: An accident reconstructionist is an expert with an engineering background. The accident reconstructionist is used to provide answers to issues surrounding the force involved in your auto collision. The accident reconstructionist uses scientific and mathematical formulas to arrive at the speed that the two vehicles, involved in the accident, were traveling at the point of impact.
A credible accident reconstructionist can be very helpful in a jury trial in explaining the amount of force involved in the collision.
BIO-MECHANICAL ENGINEERS AND EXPERTS
Q: Attorney Tully, my back and neck were fine prior to being rear-ended in an auto accident. Now I have to undergo back surgery for my injuries. The problem is that the damage to the vehicles in the accident is very minimal. I am told that the other side now has a bio-mechanical engineer to testify on their behalf. What is the purpose of a bio-mechanical engineer?
A: Usually a bio-mechanical engineer is used by the defense to argue to the jury that a minor impact collision like yours, without significant car damage, could not possibly cause your injuries. They usually argue that the amount of force involved was insufficient to cause the type of injuries you have incurred. They will also say that your back surgery could not have come from the accident because the amount of force was so minimal.
We take a very aggressive position regarding bio-mechanical engineers. In effect, we try to cast credibility on their testimony by suggesting that they did not witness the accident, they are hired guns, they do not know your particular physical condition, and they are taking away from the role of the jury because they are telling the jury that your injuries and back surgery could not possibly have been from this accident.
Unfortunately, sometimes juries use the testimony of a bio-mechanical engineer to justify their suspicion that your injuries do not deserve a lot of money, since there was minimal damage to the vehicles.
PENNSYLVANIA RULES OF EVIDENCE
Q: Attorney Tully, how does the Court determine whether the bio-mechanical engineer is allowed to testify that my auto accident could not have caused me to undergo back surgery?
A: Courts look to the Rules of Evidence for guidance. Pennsylvania Rules of Evidence 702 states, in part, if scientific or other specialized knowledge beyond that possessed by a jury, will assist the jury in understanding the evidence, then a witness qualified as an expert by his knowledge, skill or education may testify on the issue. As long as the Court is satisfied that the bio-mechanical engineer possesses some specialized knowledge that could assist the jury, the likelihood is that their testimony will be admissible.
MILD HEAD INJURY
Q: Attorney Tully, I slipped and fell on water at a fast food restaurant. I was taken to the emergency room where I was diagnosed with a mild head injury. What is a mild head injury?
A: The Head Injury Interdisciplinary Special Interest Group of the American Congress of Rehabilitation Medicine defines a mild head injury as a traumatically induced physiologic disruption of brain function which includes any period of loss of consciousness, any loss of memory, any alteration in mental state at the time of the accident, an abnormal CAT scan, and/or a length of hospital stay less than 48 hours.
Auto accidents are the leading cause of traumatic brain injuries in the general population. Auto accidents account for almost 50% of all traumatic brain injuries.
SPEED OF VEHICLES
Q: Attorney Tully, does the speed of my vehicle determine the extent of my injury in an auto accident case? I was a passenger in a car and we were t-boned by another vehicle. It was a low speed impact and there was not much damage to the car. However, I suffered a pelvic injury and need pelvic surgery because of the accident. How can this be since our vehicles were going so slow?
A: Probably because the speed of the vehicles does not directly determine one's injuries. The change of speed, your position in the vehicle, whether you were tensed for the accident or not, the restraints used, the mechanics of the impact, and other vehicle properties are really the biggest factors in determining your injuries.
We will need a doctor to testify that your pelvic surgery is from the car collision.
LIMITED TORT BLUES
Q: Attorney Tully, I was in an intersection auto accident. The other driver ran a red light. I suffered back and neck injuries, rib fractures, a torn bicep, and a wrist injury. I just found out that I selected the Limited Tort on my auto insurance policy. What do the Courts look to in determining whether I am able to pursue a personal injury claim for my injuries?
A: When you select the Limited Tort Option on your insurance and do not fall into any of the exceptions for the Limited Tort Option, you still have a chance to recover for your pain and suffering. However, you must show that the injuries you sustained caused a serious impairment of a bodily function.
The Courts look to the nature and extent of the impairment resulting from the injury. A soft tissue injury, in itself, may constitute a serious impairment of bodily function if it sufficiently impairs a part of your body.
The main point, though, in these limited tort cases is that your injury must interfere substantially with your normal activities and not be a mild or slight limitation.
For example, if you were in the hospital for your back and neck injuries for several days, and then you missed a substantial period of time from work because of your injuries, that would be helpful in proving that your normal activities have been substantially altered.
The Courts look to each case on an individual basis. That is another reason why your attorney would need to get all your records to help evaluate your claim.
SCARS, SCARS, SCARS
Q: Attorney Tully, I had a slip & fall coming down some steps. I slipped on an object that was on the top step. As a result, I hit my head on the banister and have a nasty forehead scar from the slip & fall accident. I need scar revision surgery. Will we need the testimony of my plastic surgeon at trial?
A: Technically, we probably won't because the scar is an obvious consequence from the fall. However, as a practical matter, it would be very advisable to have your plastic surgeon testify regarding your scar revision. The plastic surgeon is an expert in his field.
Thus he can educate the jury as to, not only what was involved in your scar surgery, but also what future problems may occur as a result of the surgery. For example, you will need additional scar revision surgery. Would the scarring dissipate in time? How long were you under anesthesia from the surgery? What are the relative costs for future scar revision surgery?
These are all questions that only a medical expert would be able to talk to the jury about.
SCAFFOLDING AND CLOSED HEAD INJURIES
Q: Attorney Tully, I was injured at work. I was hit in the head by scaffolding and suffered a closed head injury. Are there different types of closed head injuries?
A: Yes, there are four different groups of closed head injuries. The closed head injuries include: hematomas, hemorrhages, concussions, and contusions. When your head is struck by a hard object like scaffolding, the cerebral cortex of your brain is bruised. You can call me to discuss your medical injuries in further detail. We want to see whether you suffered a loss of consciousness and, if so, for what period of time. The longer your period of unconsciousness medically, the more severe your injury is.
Sometimes you can even have amnesia from your injuries. Amnesia is a loss of memory for events that occurred immediately prior to the injury.
ACCIDENT RECONSTRUCTIONIST
Q: Attorney Tully, I was a passenger in the car that was hit by an oncoming truck. I suffered severe elbow injuries. Now I am told that I have to undergo elbow surgery as a result of the auto collision. The injury has also affected my jaw. I have TMJ and mandible injuries. What is the value to my case of an accident reconstructionist?
A: An accident reconstructionist is an expert with an engineering background. The accident reconstructionist is used to provide answers to issues surrounding the force involved in your auto collision. The accident reconstructionist uses scientific and mathematical formulas to arrive at the speed that the two vehicles, involved in the accident, were traveling at the point of impact.
A credible accident reconstructionist can be very helpful in a jury trial in explaining the amount of force involved in the collision.
PERSONAL INJURY CASE RELEASES
Q: Attorney Tully, do I have to sign the Release to settle my case? I told my attorney to accept the offer to settle my wrist surgery auto accident case. Now I am having second thoughts about settling. I haven't signed the Release yet. Can I still change my mind and go to trial?
A: If your attorney told the insurance company that you accept their offer to settle your wrist surgery injury, your case is settled. This is true whether or not you signed a Release. The law strongly favors settlements. The case law is clear that once your attorney communicates to the insurance company that you accepted the offer they made, the case is settled. The point is to be sure you want to settle your case before you tell your attorney to accept the offer.
WORKERS COMPENSATION LIENS
Q: Attorney Tully, I drive a company car and was rear ended while working. I had to have back and knee surgery because of the collision. Am I going to have to pay back the workers compensation lien from any settlement?
A: Yes. However, when you get an attorney to represent you, you get a credit for the attorney fees and costs off of the workers compensation lien. Also, your attorney may be able to get a further compromise of your workers compensation lien.
SLIP AND FALL ON WATER
Q: Attorney Tully, I slipped on a puddle of water entering a fast food restaurant and had to have ankle surgery. Are they liable for my slip & fall injury and surgery?
A: Maybe. We would have to show they had notice of the condition and didn't act quickly to clean it up. We also must prove your ankle surgery was the result of your slip & fall on the water. We do not charge you any money unless we get you money. Call me today to discuss your claim.
SIDEWALK SLIP AND FALL
Q: Attorney Tully, I was walking on my neighbor's sidewalk and tripped on the cracked pavement. I had to have knee surgery. What do I do next about my slip and fall claim?
A: Contact an attorney like myself who handles slip & fall personal injury cases. Trip and fall cases can be difficult because the insurance company will claim you were not paying attention and that's why you tripped. We also want to take pictures of the size of the cracked pavement. Finally, we want to get copies of your medical records to determine the nature and extent of your personal injuries. We will get those for you.
HOMEOWNERS INSURANCE
Q: Attorney Tully, I was a guest at a friend's house and was hit while we were playing a game of softball. I was severely injured and had to have knee surgery. Can I sue his homeowners insurance for my injuries?
A: Homeowners may be liable for injuries sustained by a party guest who was struck while playing softball, when he was hit by a metal bat, according to a recent Massachusetts Court case. In my opinion, your injuries are worthy of pursuing. You can call my law office at 800-491-4996 to discuss this matter.
BACK SURGERY AND FACEBOOK
Q: Attorney Tully, Can the lawyer for the other side get access to my Facebook page? I was rear ended in an auto accident and had whiplash and back injuries. I think I may need back surgery.
A: Probably. This points out the danger of putting things on Facebook when you are in litigation. A lawyer representing a client in a pending litigation may be able to access the public pages of another party's social networking website such as Facebook or My Space for purposes of obtaining information for use in litigation.
We strongly recommend you don't put anything on your Facebook page that would be detrimental or harmful to your case. Many a case has been sunk by pictures of a person doing physical activity when their testimony during a deposition was that they couldn't move or get out of bed for an extended period of time.
WORKERS COMPENSATION
Q: Attorney Tully, I am an employee for a local company and I received a MRSA infection while working. Can I collect Workers Compensation for the infection?
A: Probably. An employee may be entitled to Workers Comp benefits for a serious infection he developed several days after cutting his hand on the job, a recent Court decided.
In that case, the employee cut his finger on a piece of sheet metal at work. Several days later he developed an infection that doctors diagnosed as MRSA (methicillin resistant staphylococcus). That decision, though, was from case in Oregon so it is unclear whether you would be able to get compensation in Pennsylvania for a similar injury. Call me to discuss your workers compensation claim.
MEDICAL MALPRACTICE
Q: Attorney Tully, I keep hearing that Medical Malpractice verdicts against doctors and hospitals are greatly increasing America's overall health costs. Is that true? I think my surgeon messed up my ankle surgery and I want to pursue a claim.
A: According to a new study, medical malpractice is responsible for less than 3% of the total cost of health care in the United States. The national cost of the medical liability system study was conducted by researchers from the Harvard School of Public Health. The U.S. Department of Health and Human Services has determined that the total cost of health care in the country was $2.6 trillion in 2008 or $7,681 per person.
VEHICLE ACCIDENT CASES
Q: Attorney Tully, I was in a vehicle accident and was hit head on. I had 2 knee surgeries and have a huge scar on my forehead. I think I can collect money for my pain and suffering. Can I also collect money for the embarrassment and humiliation I received as a result of the accident?
A: Probably. A person who has a cause of action for an injury may be entitled to recover as an element of damages for that form of mental distress known as humiliation. Humiliation is a feeling of degradation or inferiority or the feeling that others will view him negatively. This state of mind may result from physical harm. Your forehead scar may qualify you for a recovery.
By way of an example, suppose a young woman is involved in a vehicle accident and hits her head against the steering wheel as a result of being rear ended by another. She receives a scar from the impact of the vehicle accident. The scar is permanent in nature. She can probably recover for the embarrassment that the scar causes her. This is especially so for a single woman although it also applies to anyone in that situation, including you.
Sometimes, for example, a person will change their hair style in order to try and cover up a scar on their forehead. They might feel embarrassed by the scar and feel inferior because of it. A jury may give monetary damages for the embarrassment and humiliation that the person received from the vehicle accident. So in answer to your question, yes your facts may allow for a monetary recovery for your embarrassment and humiliation.
SLIP & FALL RECOVERY
Q: Attorney Tully, I slipped and fell at a restaurant and had neck surgery from the fall. If the jury determines I have suffered pain, what factors can they consider in order to arrive at a fair number for what I went through?
A: When an injury like your neck surgery occurs, you can be compensated for pain and suffering, physical and mental anguish and past, present and future lost earnings. The Jury can also award you damages for the cost of your medical bills.
You may also recover damages for pain and suffering within a broad category of areas including physical pain, mental anguish, suffering, mental anxiety, shock, fright, discomfort, disfigurement, reduction in the likelihood of marriage, embarrassment, humiliation, inconvenience, depression, distress, loss of well being, the inability to perform household chores, and the inability to care for one's family. Those are just some of the factors a Jury can consider in deciding on a jury verdict.
QUALITY OF LIFE
Q: Attorney Tully, can I be compensated for the loss of life's pleasures for the injuries I received in my auto accident? The tortfeasor ran a stop sign and t-boned me in a vehicle accident. I also had to have ankle surgery because of the vehicle accident.
A: Yes, Pennsylvania courts have held that the loss of life's pleasures, are compensable and proper for a Jury to consider.
DOCTOR LIABILITY
Q: Attorney Tully, I was injured in a slip and fall incident on a sidewalk. I first went to see my family doctor who prescribed physical therapy. After that didn't work, my doctor sent me to a surgeon for my back injuries. I had to have back surgery. What role do my doctors have in my lawsuit?
A: They play a big role in your claim. Your surgeon will be able to educate the Jury concerning what was involved in your specific surgery. He can testify about your injuries and how severe the tear or rip was that he had to fix. He can testify about the relative time it takes one to recover from this type of surgery. Most importantly, your surgeon will be able to testify as to the permanency issue of your injury. Your surgeon can testify regarding future problems you are likely to have including whether you would be required to have additional surgery. He can do a long range forecast as to your ability to perform certain types of work such as lifting and bending and stretching that is normally required at manual jobs.
STANDARD OF CARE
Q: Attorney Tully, what is the standard of care a doctor must testify to?
A: The standard that surgeons and physicians are usually held to is that their testimony must be to a reasonable degree of medical certainty. Your surgeon's testimony is often necessary in order to get your case to the jury in the first place. The reason for this is because, with the exception of obvious injuries and surgeries, the Law requires that a medical expert testify concerning the causal connection between your injuries and the accident. My Law Office pays the fee the surgeon requires in order to testify. You do not have to pay that money up front. If we obtain a recovery, we are reimbursed for the fee we paid the doctor to testify.
DOCTOR TESTIMONY
Q: Attorney Tully, my back was fine before I had a slip & fall on my landlord's property. Then I eventually had to have surgery. Why is it necessary to have to pay a doctor to testify my surgery was due to the accident? Isn't it obvious since I didn't have any problems before the accident to my back?
A: You would think so. Unfortunately, that is not what the law requires. You must show a causal connection between the injuries you sustained and the accident. Unless there is this causal connection, you will not be able to recover for the injuries you received from the accident. Even if you were in good health at the time of the accident, and suffered no prior back or neck problems, it is conceivable that your injuries could be degenerative in nature. That just means that any tear you received to a body part had to do with your aging not to your slip and fall injury.
Therefore, it is crucial to have a doctor testify in your behalf. One exception to this physician requirement may be when the relationship between your pain and the injury you received is very obvious and within the knowledge of laymen. In that limited case, it is possible that no expert testimony is required to establish the causal connection between your slip & fall and your injury.
An example where no expert testimony is necessary to establish a causal relationship between an automobile accident and an injury may be if your forehead struck the windshield and your left side struck the driver's side door in a vehicle accident. You develop severe headaches, neck, shoulder and arm pain six hours after the accident and require medical treatment for eight months. There you might not need a doctor's testimony.
Where the relationship is not obvious, expert testimony on causation is essential. An example of a case where expert testimony is required might be when the evidence establishes that you had a pre-existing or degenerative problem and you also did not develop back pain immediately after the accident. In that situation, you would likely need a doctor to connect your surgery to the accident.
EXPERT TESTIMONY
Q: Attorney Tully, does an expert have to testify within a reasonable degree of medical certainty about my future problems? I had a slip and fall that resulted in neck surgery.
A: No. A lot less certainty is required with respect to a doctor's opinion concerning to whether and for how long you may experience pain and suffering in the future. Because an expert's prediction as to what a person experiences in the future necessarily involves some speculation, an opinion based on less than reasonable certainty is still enough.
For example, one Court allowed the testimony of a physician that a patient had a 1 in 20 chance of developing epileptic seizures in the next 15 to 20 years as a result of a head injury sustained in the accident.
FACTORS IN JURY AWARDS
Q: Attorney Tully, how does the Court decide whether a jury's award for pain and suffering damages is supported by enough evidence? I had a work related accident had to have wrist surgery.
A: The Courts can look to many factors in making this decision. Some of the factors may include the following: the severity of the injuries, whether the injury is shown by objective physical evidence or subjective evidence, whether the injury is permanent, the injured parties ability to continue employment, the disparity between the amount of out-of-pocket expenses and the amount of the verdict and the damages the plaintiff requested in his complaint.
EMOTIONAL DISTRESS
Q: Attorney Tully, can I recover for intentional infliction of emotional distress and what factors do the Courts consider in deciding that issue?
A: Yes you may recover for intentional infliction of emotional distress in certain cases. The following factors are often considered by the Courts in deciding whether you are allowed to recover. (1)The conduct must be extreme and outrageous. (2)The conduct must be intentional or reckless. (3)The conduct must have caused emotional distress. (4)And the distress must be severe in nature. Again, we would need competent medical evidence to support a claim of severe emotional distress.
WORKPLACE ACCIDENT
Q: Attorney Tully, my hand got caught in a machine at work and I had to have wrist surgery. Do you recommend that I keep a diary of what happened to me from the accident through the present?
A: Absolutely. It is easy to forget, a year from now, everything you went through in the first several months after your injury. By keeping a detailed diary of what you are going thru, and why, together with the documentation of the medical treatment you are receiving for your injuries, you will be in a much better position to describe the extent of your injuries from the beginning to the present.
VEHICLE ACCIDENT DAMAGES
Q: Attorney Tully, how do you show damages in my vehicle accident case to the jury? I fractured my knee and had to have knee surgery.
A: In addition to your surgeon, often times we try to have the testimony of your spouse, family members, friends, neighbors, other employees and employers discuss the effect of the injury on your quality of life. They can tell the Jury the changes they saw in your mood, demeanor and personality.
If you testify to the same facts, the jury might consider you are malingering or a gold-bricker. However, if the same Jurors hear those stories from family members and friends and employees, it develops a deeper sense of what you are going through. Finally, a physician's testimony as to the excruciating nature of your pain will be must more easily accepted by the jury than if you say the same thing to them.
SOFT TISSUE INJURY
Q: Attorney Tully, do you see a pattern by insurance companies in dealing with soft tissue, low impact type cases? I was rear ended in a vehicle accident, but there is no damage to my vehicle.
A: Yes. I have found that by and large insurance companies will fight to the death, soft tissue, minor impact injury cases with everything they have. They recognize, especially when there is no physical damage to the car, that a Jury is going to be very skeptical of claims for pain and suffering. Therefore, insurance companies tend to make real low offers for these types of cases because they know a jury in unlikely to give much in the way of damages. There are ways to deal with these types of situations, but it is important to know that this will be a battle.
RECOVERING LOST WAGES
Q: Attorney Tully, I had a slip and fall on ice that required back surgery. Can I recover for my lost wages?
A: Probably. Generally, we focus on your loss of earning capacity to add big numbers to your loss. We often employ an economist who is able to analyze your work history and compare that to someone your age in a similar field of work to determine how much money you not only lost in the past from the slip and fall, but are likely to lose in the future.
If, for example, your surgeon testifies that because of back surgery your work life is likely to be 5 years shorter than if you did not have the back surgery, then an economist can project out those numbers and give a hard number for a Jury to consider in compensating you for your loss of earning capacity.
THE EGGSHELL RULE
Q: Attorney Tully, what is this eggshell rule I keep hearing about? I am 84 years old and was in a vehicle accident.
A: The eggshell rule basically says that you take the injured party as you find him or her. If the injured party has a fragile body and is hurt much worse than another person might be for the same injuries, the Law still allows a Jury to compensate the weak or eggshelled injured person for the injuries they sustained.
For example, you might not think that a minor impact from a rearender accident would cause much injury to a person. However, if the injured party is in a weakened condition or their bones are brittle and crack much easier than another person's, then that brittle individual is still entitled to recover for whatever they suffered regardless of whether another person would not have felt the impact.
The eggshell rule can be a very powerful tool in explaining to a Jury why your case is unique and why you are entitled to just compensation for your auto accident injuries.
PASSENGER INJURIES
Q: Attorney Tully, can my wife recover for what she has gone thru as a result of my auto accident that required neck surgery?
A: Yes. Your wife can file a loss of consortium claim. Consortium is defined as the conjugal fellowship of husband and wife and the right of each to the company, society, cooperation, affection, and aid of the other in every conjugal relationship. Consortium losses for the wife which may be available include damages for whatever aid, assistance, comfort and society one spouse would be expected to render or bestow upon the other under the circumstances.
In plain English, if an injury causes friction between you and your wife and you cannot engage in relations because of it, not only would you be entitled to your pain and suffering recovery, but your wife would also be entitled to make a claim for her loss of consortium due to your injury. Consortium grows out of a marriage relationship in which the injury and surgery interfered with the marital relationship. Therefore, your wife would be entitled to get compensation under those circumstances. Marriage is a prerequisite for a loss of consortium claim.
HOMEMAKER COMPENSATION
Q: Attorney Tully: I am a homemaker and do not have a job outside my home. I was rear ended in a vehicle accident and had to have knee surgery for my injuries. Can I get compensation for my homemaker services?
A: Yes. Under Pennsylvania law an injured party should be compensated for the costs incurred as a result of his or her inability to perform household or family chores or services which he or she would otherwise have rendered but for the injuries sustained as a result of the accident. Household activities include cooking, housework, shopping, yard work, household maintenance, babysitting, tutoring, transportation, and other activities often performed by women and men in our society.
Often an economist and/or a vocational expert will be retained so that the monetary value of the services previously performed by you such as cooking, housework, transportation, babysitting, maintenance, grass cutting, etc. can be ascertained and presented to the fact finder in a clear manner.
Unlike a loss of consortium, damages for loss of household services are easily identifiable. Again, an evaluation expert can help educate the jury on a dollar loss amount.
UNEMPLOYED LOSS OF EARNINGS RECOVERY
Q: Attorney Tully. I was involved in a slip and fall injury on another person's property and had to have neck surgery. I was not working at the time of the accident. Can I still make a claim for loss of earnings?
A: Yes. It is not essential for a wage loss recovery that you be employed at the time of the accident. Although your opportunities for employment are important in determining the amount that you would probably been able to have earned but for the injury, the bottom line is you can still make such a claim, even if you were not working when your accident happened.
SELF-EMPLOYMENT LOSS RECOVERY
Q: Attorney Tully, I was riding my bicycle and was hit by a car, thrown to the ground and had to have hand surgery as a result of my accident. I was self-employed at the time. Can I recover for the income that I lost due to my down time?
A: Probably. As with household services, an injured person who is self-employed may recover the cost of hiring substitute labor. Also if you can show that your company lost money due to your inability to work, you would likely be able to recover that too.
LOST EARNING CAPACITY RECOVERY
Q: Attorney Tully, how does the law define past lost earning and loss earning capacity? I had a severe back injury that required surgery due to a vehicle accident. I was t-boned at an intersection.
A: You are entitled to be compensated for the amount of earnings you have lost up to the time of trial as a result of your injuries. This amount is the difference between what you probably could have earned but for the harm, and any less sum which you actually earned in any employment.
PRESENTING YOUR LOSS TO JURIES
Q: Attorney Tully, what procedures do you use to show the jury what I went thru following my wrist surgery in the weeks and months that I was laid up?
A: Sometimes if the case justifies it, we will use a day-in-the-life film to depict to the jury what you are going thru. A day-in-the-life film is a videotape which purports to show the impact of your injuries on your daily activities and daily life. We always use a professional photographer or videographer for this procedure.
These day-in-the-life films are usually reserved for serious and permanent injury cases. We often use these films in conjunction with the testimony of some witness other than yourself with expertise in understanding the dealings with your injuries such as a nurse, therapist, or your family doctor. Under Pennsylvania law the trial court has discretion to admit day-in-the-life films.
If the film is admitted into evidence it can have a powerful impact on the jury's perception of what you went thru due to your injuries.
PUNITIVE DAMAGES
Q: Attorney Tully, What are punitive damages and can I recover them in my case? I was hit by a drunk driver in a vehicle accident with two prior DUI convictions.
A: Punitive damages are punishment damages added onto your regular damages for pain and suffering to deter others from committing the same acts in the future. The purpose of punitive damages is to punish and deter outrageous conduct. The standard that is often used is that the conduct must show a reckless indifference to the rights of others. Your argument would be that driving under the influence of alcohol by voluntarily drinking ones self to the point of intoxication and having done so at least twice before that, is such an outrageous act that it does show a reckless indifference to your rights and the rights of anyone else on the highway when the vehicle accident occurred.
PUNITIVE DAMAGES AND ESTATES
Q: Attorney Tully, can I make a claim for punitive damages against the estate of the drunk driver who struck me? He has since died and I want to file a claim against his estate.
A: Probably. The death of the tortfeasor does not stop or completely thwart the purposes of awarding punitive damages. The purposes of awarding punitive damages is to punish the defendant for outrageous conduct and deter him or others from engaging in similar conduct in the future. The deterrent effect on the conduct of others is more speculative in this instance than in cases where the tortfeasor is alive, but the result is the same.
PUNITIVE DAMAGES AND INSURANCE COMPANIES
Q: Attorney Tully, can I make a claim for punitive damages against the insurance company that represents the tortfeasor that caused my finger surgery?
A: Probably not. Generally auto insurance policies are written in such a way that the insurance company is not responsible for punitive or punishment damages if you prevail in the case. You may be able to get a judgment against the person who caused the accident for punitive or punishment damages, but they would only be collectible if the tortfeasor who caused your accident had the ability to pay the award for punishment damages. The insurance company would be on the hook however for all your pain and suffering relative to your injuries if you won the case.
