Damages: What does the future look like?

A review of the experts needed to establish future medical costs and loss of-earnings capacity

2025 April

Future damages are often underemphasized in personal-injury cases. Typically, pain and suffering are framed around treatment that occurred two to four years ago. But in cases involving clients who are middle aged or older, the ability to articulate the need for 15-20 years of ongoing medical treatment, accommodations, pain, suffering, inconvenience, and depression can significantly enhance the value of your case.

At times, attorneys argue that their clients require future treatment without providing sufficient evidence to justify the costs. Simply referencing a doctor’s report in a demand or mediation brief is not enough to substantiate future medical treatment or loss of earnings capacity. The burden falls on us, as plaintiffs’ attorneys, to establish the necessity and reasonableness of future treatment with a reasonable degree of medical probability. Relying solely on a treating physician, particularly when the doctor is also a lien holder, can open the door to criticism and bias, which can harm your case.

Retaining the right experts is crucial not only to ensure your client receives proper compensation and care, but also for demonstrating to defense counsel and the insurance carrier your commitment to achieving the best outcome. Simply transcribing recommendations from medical reports won’t be enough and won’t carry weight in negotiations. Whether your strategy is to settle or go to trial, it’s essential to present defense counsel with adequate evidence of future damages. Key experts for presenting future damages include life care planners, billing experts, vocational rehabilitation experts, and economists.

Life-care planner

A life-care plan is a comprehensive document, developed with the help of an expert, that outlines all projected future care your client will require. The importance of a life-care plan in larger, catastrophic cases cannot be understated. The expert you select will examine your client in person and consult your client’s treating doctors to develop the plan. Life-care plans are typically recommended for surgical cases or situations where your client has suffered permanent injuries, such as a traumatic brain injury or Complex Regional Pain Syndrome (CRPS). Additionally, a life-care plan is essential in Proposition 213 cases, where noneconomic damages are unavailable, but your client is expected to undergo a lifetime of treatment for permanent injuries.

To strengthen your argument, consider hiring a life-care planner who is also a physician. This expert can (1) consult with treating physicians and retained experts to discuss case details, (2) conduct independent research on future costs, and (3) provide a professional medical opinion. Not only does this help in trial, but it also plays a critical role in how insurance companies evaluate the nature and extent of your client’s injuries and the overall value of the case.

It’s essential for your life-care planner to consult with your treating physician and/or retained experts. For instance, in a case involving spine surgery, the life-care planner should speak with the treating surgeon, pain-management doctor, and/or retained orthopedic surgeon. This collaboration will help the life-care planner outline the frequency of future treatments and the associated costs, such as physical therapy, pain management, and surgery. Additionally, the life-care planner should have access to all relevant medical records and review the deposition transcripts of treating physicians to ensure a solid foundation for their opinions. In cases involving brain injury, it’s equally important for the life-care planner to consult with your client’s neurologist, neuropsychologist, and psychiatrist. This will allow them to detail the costs and frequency of potential treatments such as psychotherapy, medication, in-home care, behavioral care, and occupational therapy.

When presenting a life-care plan, it is important to maintain credibility regarding what future care is being argued for and tailor the plan to your client based on what is reasonable and necessary. This will ensure that defense counsel or a jury will not discount the life-care planners’ testimony for treatment.  You must review the work product and make sure it does not make it seem like the plaintiff is overreaching.

Once completed, this life-care plan creates an overarching and easily digestible way to understand the true nature of what your client will need. The plan essentially creates a timeline of what plaintiffs will require as their injuries and age progress. A well-prepared, easily understood life-care plan in your client’s file – one that the insurance carrier and defense counsel know you’ll present to the jury – can create significant exposure to a larger loss at trial. This exposure often leads to settlements, especially in traumatic brain injury cases that may require intensive, round-the-clock care.

Billing expert versus life-care planner

An alternative approach to presenting future treatment costs is to hire a billing expert who can testify about the reasonable and customary costs for the required treatment. The billing expert can consult with your retained orthopedic surgeon, neurologist, or psychiatrist to determine what future care your client will need. They can then present the cost of treatments to the jury, such as the price of an adjacent level fusion, physical therapy, or epidural injections. This method can be a simpler and more cost-effective way to present future damages, especially in cases where the treatment is less complex.

Cross-examination: Introduction of Medicare rates? – Audish v. Macias (2024) 102 Cal.App.5th 740

It is important for your experts to be aware that they may be cross-examined on the reasonable and customary costs of future medical care, particularly when asked to compare Medicare rates for the same treatment. In the recent case Audish v. Macias (2024) 102 Cal.App.5th 740, the Court of Appeal ruled that defendants were permitted to ask questions regarding (1) the future availability of Medicare and (2) the anticipated costs of treatments under Medicare. The trial court allowed evidence on these topics, finding it relevant to the reasonable value of future medical care. Additionally, the collateral-source rule was not implicated. Therefore, your expert should be prepared to explain why Medicare rates may not be reasonable, emphasizing that Medicare is a secondary payer and that some clients may not even qualify for such benefits.

Vocation-rehabilitation expert

A vocational-rehabilitation expert plays a crucial role in cases involving permanent orthopedic injuries or traumatic brain injuries. They assess your client’s ability to return to their previous job or perform a new one. To evaluate a loss-of-earnings capacity, the expert must review your client’s pre-injury earning potential. This can be done by gathering evidence such as pay stubs, profit and loss statements, or testimony from co-workers. For instance, asking a co-worker or supervisor to testify about the client’s work performance before the injury helps jurors understand the type of employee the plaintiff was and their value to the company. If your client was on track for a promotion, be sure to highlight this, as it can strengthen your case. Presenting this evidence paints a clear picture of how hardworking and successful your client was prior to the injury.

To provide the vocational-rehabilitation expert with a strong foundation for their opinions, it is important to share as much relevant information as possible. This includes medical records, disability notes, expert opinions on limitations, deposition transcripts, employment files, and work notes. Additionally, the expert should conduct an interview with the client to gain a deeper understanding of their limitations and explore why they are passionate about their job. This approach will help ensure a thorough and well-informed evaluation.

Further, in cases involving orthopedic injuries, such as spinal surgery, it is crucial to assess the physical limitations your client now faces and how these restrictions impact their future earning potential. It is essential to ensure that the claimed limitations align with your client’s current work. For example, if your client previously worked in construction and has now undergone a fusion surgery, they may face permanent restrictions on the amount of weight they can lift or carry. In this scenario, arguing that they can no longer perform the same type of work is both logical and consistent. However, the same argument would not apply as effectively to an individual with the same injury who works in an office setting. By clearly establishing these limitations, you strengthen your case and demonstrate the genuine impact of the injury on your client’s livelihood.

The defense often argues that an injured plaintiff can find another job with just $10,000 allocated for vocational rehabilitation and job placement assistance. However, it is crucial to show the jury what the job meant to your client – even if it was physically demanding.

By way of a real-life example, I once represented a motorcycle rider who suffered a severe crash, requiring a lower-back fusion. As a result, he could no longer continue his career as a truck driver for a petroleum company – a job that involved pulling 25-foot hoses, climbing oil tanks, and lifting sandbags. The defense claimed he could work as a crane and tower operator, earning a similar salary. To counter this, my client testified about his deep connection to his job. He shared how his passion for the company began in childhood, visiting the workplace with his father, who was also an employee. This was the only company he had ever worked for since starting at 18. His dedication went beyond a paycheck – it was a part of his identity.

This highlights a key point – presenting evidence of their life experience and passion for their work is essential in demonstrating the true impact of their injury – not just on their income, but on their sense of purpose.

Traumatic brain injury

In cases involving a client who has suffered a traumatic brain injury, it is important that your expert has background and experience with individuals that have suffered such injuries. Traumatic brain injuries can have a profound and multifaceted impact on a person’s life, requiring careful evaluation of several key factors, including executive functioning, cognitive processing, behavioral regulation, emotional regulation, attention/distractibility, fatigue and stress management, safety concerns, procedural memory, physical coordination, and occupational identity. Ensuring that your expert understands these complexities is critical to accurately presenting the full extent of your client’s injuries and their long-term impact.

An important aspect to emphasize in traumatic brain injury cases is how your client’s limitations affect their ability to increase their earning potential. The cognitive and functional deficits they now suffer from can significantly hinder career growth and financial stability. These limitations can be substantiated through expert testimony from a neuropsychologist, neurologist, and psychiatrist who can provide a detailed analysis of how the injury impacts your client’s ability to work and advance in their profession.

Economist

Finally, an economist is essential to calculate the net present value of future care and the loss of earnings capacity. Often, the defense is willing to stipulate to the net present value of the care after expert depositions. A common mistake is neglecting to retain an economist, relying instead on CACI instructions regarding interest and present value reductions. Avoid this mistake by ensuring you retain an economist and consider entering into a stipulation with defense counsel regarding the net present value.