Admitting Future Medical Expenses in Personal Injury or Medical Malpractice Lawsuits

In most cases where an individual suffered a permanent injury caused by the negligence of another, the issue of future medical expenses comes into play. In most of these cases, a treating physician who has been active in the care and treatment of the patient and our client will be the best person to testify to a reasonable degree of medical certainty that there will be specific future medical care necessary. In those cases, the admissibility of the physician’s medical opinions about the need for future medical attention and his or her medical opinions about the cost of that medical care can be admitted into evidence by that very testimony.

In the more catastrophic injury category such as a traumatic brain injury, amputation or paraplegia, the attorney representing the injured party may call upon an expert in life care planning to give testimony and evidence to the jury as to the specific opinions about the necessary costs for this individual’s future medical needs.

In most personal injury or in medical malpractice cases, the treating physician is the obvious witness to provide the evidentiary foundation for future medical treatment and care as well as costs.

In those cases where there is evidence of future damages or the need for future surgeries and other medical care, the amount of damages is a question reserved to the jury who are the trier of fact. Should a case where future damages is the subject and an issue on appeal, the Illinois Appellate Courts have regularly reserved to the jury leeway and would generally not overturn a verdict when the jury has reasonably come to its conclusions on future damages.

In one case, Kamp v. Pries, 333 Ill.App.3d 1115 (5th Dist. 2002), the plaintiff fell fifteen feet from a collapsing deck that resulted in a severe leg fracture. The plaintiff went through two surgeries and developed a bone infection, osteomyelitis. At an evidence deposition presented at trial, the treating surgeon testified that to a reasonable degree of medical certainty, this plaintiff could develop osteomyelitis in the future and could require another surgery and possibly an amputation of the leg. The trial court allowed the prognosis testimony into evidence over objection and instructed the jury to consider both future medical treatment and future medical expenses in determining its verdict. The jury returned a verdict of $1.3 million. The defendant in that case appealed arguing about the future damages evidence claiming it was both speculative and inadmissible. The appeals panel for the 5th District disagreed with the defendant and affirmed the jury’s verdict. The appellate court made note that the testifying treating physician stated that there was a strong possibility that the plaintiff may incur future damages and such testimony was in fact admissible. The appeals panel held that if the negligence of the defendant places the plaintiff at a greater risk of future damages, then the plaintiff is entitled to recover those damages. If the plaintiff’s theory of the case includes the possibility of future damages supported by physician testimony, then the plaintiff is entitled to have the jury instructed by the trial court about the issue of future damages.

In another Illinois case it was decided by the court that when a physician testifies about future damages the doctor may testify in terms of what “might or could” have caused the plaintiff’s injuries. The court held that even though the opposite party may argue about the weakness of that opinion and may cross-examine the witness accordingly, it is still up to the jury to weigh the witness’ opinion testimony. Hawn v. Fritcher, 301 Ill.App.3d 248 (4th Dist. 1998).

It is often in a plaintiff’s lawyers notes to make sure to ask the physician about any issue of medical care to give any opinion to a reasonable degree of medical certainty. However, that term reasonable degree of medical certainty is not some magical term that is required to give admissible opinion testimony according to the case of Hahn v. Union Pacific Railroad Company, 352 Ill.App.3d 922 (5 th Dist. 2004). In that case, neither attorney for the plaintiff or defendants asked the physician expert for the defendant if his opinions were to a reasonable degree of medical certainty. The defendant moved for summary judgment arguing that there was no material fact regarding cause of the plaintiff’s low back injuries. The trial court granted the motion for summary judgment which was appealed by the plaintiff. The ruling was reversed because a treating physician’s witness had testified what might or could have caused the plaintiff’s back injuries from his work activities and thus were admissible even though the opinions were not prefaced by the phrase to a reasonable degree of medical certainty. The appellate court stated: “There is no magic to the phrase itself.” As long as the physician’s testimony is based upon specialized knowledge and experience and recognized medical thought, the doctor’s opinions are admissible absent the magic phrase. The circumstantial evidence and reasonable inferences that can be drawn from it regarding the causal connection between the plaintiff’s injuries and his employment was held to be a jury question as raised by the appellate court.

According to recent Illinois case law, it is clear that after qualifying a physician opinion witness as an expert, opinions generated by the expert about “might or could” possibilities regarding future damages, injuries, medical care and the cost of the plaintiff’s future medical care are admissible even without the magic language or phrase of based upon a reasonable degree of medical certainty or more probably true than not true.

The Illinois Pattern Jury Instruction 30.06 is the instruction governing the recovery of an injured plaintiff’s medical expenses. The instruction states: “The reasonable expense of necessary medical care, treatment and services received and the present cash value of the reasonable expense of medical care, treatment, and services reasonably certain to be received in the future.” Apparently from that instruction there is no mention of future medical damages. The trial lawyer must take it upon himself or herself to convince the trial judge to instruct the jury about future medical damages under the Illinois Pattern Jury Instruction 30.06 as it may be modified. If not, the jury will simply not be able to itemize future medical expenses.

In sum, when the plaintiff’s treating physician testifies that the patient-plaintiff has a permanent injury or disability, that testimony lays the predicate foundation for an award of future medical expenses. If the qualified medical witness testifies at trial that the plaintiff has a permanent injury or disability and the plaintiff might or could require future medical care and incur future medical expenses, then the plaintiff is entitled to have the jury instructed about future medical expenses under that same Illinois Pattern Jury Instruction 30.06. The jury is allowed to infer from the nature of the disability that the plaintiff suffered future medical expenses may be necessarily incurred by the plaintiff. Then the jury can assess some of those future medical expenses even absent a specific dollar figure provided to the jury through opinion testimony.

Reference to The Admissibility of Future Medical Expenses is drawn primarily from Volume 20, No. 2, Summer 2018 from the article by attorney R. Courtney Hughes which appeared in the Illinois Trial Lawyers Journal.

If you or a family member has been injured or died as a result of the carelessness or negligence of another, Robert Kreisman of Kreisman Law Offices is prepared to handle your case. Robert Kreisman has more than 40 years of experience handling Illinois jury trials.

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