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Increased Care Burden

When someone is severely injured in an accident or as a result of medical negligence, the injured party’s spouse sometimes will miss work in order to care for his/her spouse at home.  The question is:  What damages are recoverable for this care?  Can the spouse recover for loss of income if s/he takes off work to care for the injured party?  Or can they only recover for the fair market value of the home health care?

In Hutchings v. Childress, 119 Ohio St.3d 486, 2008-Ohio-4568, the Ohio Supreme Court held:  The injured spouse can recover the fair market value of the home health care provided by the supportive spouse, but not for the loss of income.

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Damages

We are often asked what damages are recoverable when someone is injured by someone else’s negligence.  (Wrongful death damages are covered in another post:  Wrongful Death).  As a general rule, an injured person is entitled to recover an amount that will fairly and justly compensate him/her for the injury sustained.  The injured party shall have compensation for all of the injuries sustained.  Compensatory damages are intended to “make the plaintiff whole.”  The three most common categories of recoverable damages are:

I. Medical Expenses (past and future)

II. Lost Earnings and Loss of Earning Capacity (past and future)

III. Pain and Suffering.  The most common noneconomic loss is the physical pain and mental suffering endured by the plaintiff as a direct result of the injury sustained.  The amount of money damages for pain and suffering is strictly a matter for the jury to decide.

Permanent Disability.  For very serious injuries, if the plaintiff has suffered a permanent disability, such as the inability to perform the usual activities of life, the basic mechanical body movements of walking, climbing stairs, feeding oneself, driving a car, etc., or by way of the inability to perform the plaintiff’s usual specific activities that had given pleasure to the plaintiff, the jury can make a separate award for permanent disability, which is separate from pain and suffering.

Other Damages.  In addition to the main categories, additional damages may be awarded in certain circumstances, such as recovery for scars and disfigurement, family losses (loss of society, consortium, companionship, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, or education), increased care burden, etc.

For a comprehensive discussion of recoverable damages for personal injury under Ohio law, see Fantozzi v. Sandusky Cement Prod. Co. (1992), 64 Ohio St.3d 601.  A fairly comprehensive list of the recoverable damages for personal injury is:

  • Medical Expenses
  • Loss of Income
  • Physical Pain:  Physiological (discomfort, distress, or agony)
  • Mental Suffering:  Psychological; the mental or emotional consequences of the plaintiff’s injury (includes fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror, ordeal, etc.)
  • Inability to Perform Usual Activities/Loss of Enjoyment of Life:  These are broken down into basic activities such as walking, climbing stairs, feeding oneself, driving a car, and activities specific to the plaintiff’s lifestyle, such as golfing, fishing, yardwork, bowling, hobbies, dancing, outdoor activities, playing musical instruments, etc.  

Comments:

While medical expenses and loss of income are usually easy to calculate, the noneconomic (intangible) losses of pain, suffering and permanent disability are difficult to predict-the jury is free to award whatever they deem fair and reasonable.  Nevertheless, an experienced trial attorney will have a general sense of what a jury will award in any given case.

Jeff Beausay

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What’s My Case Worth?

We take many factors into consideration in evaluating a case.  These include but are not limited to:

• Do the facts of the case cause an unusual reaction?
• Are the parties and witnesses likeable and believable?
• Is the case venued in a conservative, moderate, or liberal jurisdiction?
• The skill level of the defense attorney
• The severity of the injuries
• The economic losses (usually medical expenses and loss of income)
• The non-economic losses (pain and suffering, emotional distress, permanent disability, disfigurement, etc.) (See Damages).

Comments

Remember, there are three main categories of damages in most cases:  Medical expenses, lost income, and pain and suffering.  Medical bills and loss of income are easy to determine.  As for pain and suffering, it just depends on how serious the injury is, how long it takes to recover, and whether there is permanancy. 

These are some of the important factors taken into consideration.  Our attorneys have had years of experience handling cases similar to yours in a variety of circumstances, and therefore are in the best position to evaluate your case.

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Personal Injury Damages Caps Upheld by Ohio Supreme Court

In 2005, the Ohio General Assembly passed several “tort reform” measures, the most controversial being the limits on the amount a jury can award in personal injury and product liability cases.  See RC 2315.18.  Under the 2005 rules, a plaintiff cannot recover more than the greater of (1)$250,000 or (2) three times the economic damages up to a maximum of $350,000, or $500,000 per single occurrence.  These limits do not apply to catastrophic injuries, defined as ”permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system,” or “permanent physical functional injury that permanently prevents the injured person from being able to independently care for self and perform life-sustaining activities.”  These changes went into effect on April 7, 2005.

This statute was challenged on constitutional grounds.  In Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, the Ohio Supreme Court held that this and other tort reform provisions do not violate the Ohio Constitution.

TJB’s BS:

Let’s not overreact.  These limits DO NOT apply to medical malpractice cases, wrongful death cases, or cases involving catastrophic injuries (as defined in the statute).  It would be unusual for a jury to award noneconomic damages (e.g. pain and suffering) in excess of $250,000 if the injury is not catastrophic.  So, in reality, this statute will not affect that many cases.

Also, bear in mind, the Ohio Supreme Court, as presently constituted, is a “strict constructionist” court, meaning that the Justices tend to uphold statutes passed by the General Assembly (Congress), unless the statute clearly violates the Ohio Constitution.  Therefore, if the people of Ohio strongly disagree with these tort reform measures, they need to elect different politicians who are more “plaintiff friendly.”

The more interesting constitutional question will arise in the medical malpractice context, where the damages caps have no exception for catastrophic injuries.

Jeffrey Beausay, Trial Lawyer

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