Barry P. Goldberg counsels his clients that an award of future medical damages is not automatic. In fact, future medical expenses must be carefully presented both at the claim stage and in litigation. Not only must the future damages be reasonably certain, but the amount of the damages must be reasonably calculated. An experienced trial attorney will elicit adequate testimony from medical experts to ensure that an adequate award is made and not overturned on appeal.
It is axiomatic that an injured plaintiff is entitled to recover the reasonable cost of necessary medical care, including future expenses. (6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1670.) Whether future medical care is reasonably certain to occur is a question of fact for the jury. (Ostertag v. Bethlehem Shipbuilding Corp. (1944) 65 Cal.App.2d 795, 805-806, 807.) To establish reasonable certainty, it is not necessary that a physician testify that he or she is reasonably certain the plaintiff will be disabled in the future. There need only be evidence that plaintiff's future disability is reasonably certain. That the amount of future damages may be difficult to measure or subject to various possible contingencies, does not bar recovery. (Garcia v. Duro Dyne Corp. (2007) 156 Cal.App.4th 92, 97-98 (Garcia).)
In many car accident cases, the plaintiff's testimony that he or she continues to have headaches and neck pain and the treating doctor's testimony that headaches and neck pain were chronic and were not going to resolve on their own constitutes substantial evidence that plaintiff is reasonably certain to require future medical care to address the harm resulting from the accident.
However, not only must the fact of damage be clearly established but the amount needs to be proved with the some degree of certainty. The amount may be left to reasonable approximation or inference because a future damages award is based on probabilities. (6 Witkin, Summary of Cal. Law, supra, Torts, § 1551.) Nevertheless, the evidence must show a degree of probability that amounts to a reasonable certainty that prospective damages will result from the original injury. (Behr v. Redmond (2011) 193 Cal.App.4th 517, 533 (Behr).)
In years past, the physician who testifies that future medical care is necessary offered an opinion as to the probable costs. Normally, future medical expenses are a subject that is sufficiently beyond common experience that expert opinion is useful to assist the trier of fact. (Evid. Code, § 801; Haning et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2013) ¶ 3:62 (rev. # 1, 2013).) Unfortunately, more and more doctors who recommend future care, like surgery or trigger point injections, have no opinion as to their cost. For that matter, who in this world understands actual medical costs?
This is a problem that crops up too often even with seasoned trial attorneys. If there is no evidence of the cost of surgery or trigger point injections--past or future--or of the future cost of any other recommended treatment, the jury could only speculate as to their cost to determine the amount awarded. This is extremely dangerous and could result in a judgment notwithstanding the verdict (JNOV) or an appeal eliminating future medical expenses from an otherwise adequate verdict in plaintiff's favor.