Am I Entitled to Compensation for the Risk of Future Surgery Following a Car Accident?

Last updated Oct. 15, 2018.

The effects of a car accident can stay with a victim for the rest of his or her life. Naturally, that includes non-pecuniary damages like psychological trauma or pain and suffering, which by their nature cannot be precisely quantified. But it also includes cases in which, even after a victim has received extensive medical care, there remains some risk that additional surgery or rehabilitation will be necessary in the future.

The reality is that when a personal injury claim arising from a car accident goes to trial in British Columbia, a victim’s doctors may not know for certain if or when future surgery may be necessary. Fortunately, this does not prevent a victim from recovering damages from a negligent defendant to compensate for such risks.

To illustrate that point, consider the following recent British Columbia Supreme Court case that addressed just such a situation.

Gougen v. Di Maddalena: Child Requires Multiple Surgeries Following T-Bone Accident

This particular case began with a 2005 car accident in Coombs, a small community located on Vancouver Island. The plaintiff was 7 years old at the time. He was riding as a passenger in someone else’s car when the vehicle was hit from the side in a “T-bone” accident caused by the defendant, who was traveling at excessive speed.

According to court records, following the accident, the plaintiff “had to be extracted from the vehicle” and taken to a local hospital, where he was treated for “blunt abdominal trauma” and an “inflammation of the lining of the abdominal cavity.” The severity of these injuries required transferring the plaintiff to a larger hospital, where he underwent his first surgery.

Three years later, the plaintiff required a second surgery, this time to repair an “abdominal aortic aneurysm,” which is essentially an enlargement of the largest artery in the abdominal cavity. If left untreated, the condition can result in rupture of the aneurysm and death.

Child’s Personal Injury Claim Goes to Trial

At trial before Justice Carla L. Forth of the Supreme Court of British Columbia in November 2017, the defendant admitted liability for the accident and acknowledged that the plaintiff suffered serious injuries as a result.

The main point of contention between the parties was whether or not the plaintiff was entitled to damages to account for the risk of “future complications and surgeries” that might be required.

The defense maintained that any physical or psychological consequences arising from the accident “have resolved” by the time of trial and that there was nothing more than a “low risk of future complication,” which should not affect the plaintiff’s life going forward in any meaningful way.

The plaintiff disagreed. He argued that his condition was not fully resolved. Notably, he continued to struggle with “anxiety relating to being a passenger in a vehicle, around large crowds, and with needles.” More to the point, he said there was a significant risk he would require additional surgery in the future.

As is often the case in these kinds of disputes, both sides presented expert medical testimony in support of their respective positions. One complicating factor here was the relative youth of the plaintiff at the time of the accident.

All of the experts who testified agreed it was “extremely rare” for a child to require an aortic repair. Indeed, one of the defense experts acknowledged that although he had performed over 1,000 aortic repairs in nearly 36 years of practice, he had only done the procedure twice on pediatric patients. Even the medical literature relied upon by the experts depended on limited sample sizes of children who required this type of procedure.

B.C. Court Finds 10-15% Chance of Needing Future Surgery

Given these limitations, Justice Forth ultimately concluded that “it is not possible to provide a precise percentage risk on the future likelihood of some type of complication.” She also said there was still “some risk” that the plaintiff would require future surgery at some point during his lifetime. The Court assessed the risk at somewhere between 10% and 15%.

The question, then, was how much this risk would impact the plaintiff’s “claim for future care costs and for loss of future earnings.” On the issue of future earnings the judge found that if a future surgery became necessary, then the plaintiff, who was by then a university student with part-time employment, would likely miss two to eight weeks of work for recovery time. Justice Forth determined that was worth $20,000 in damages to the plaintiff.

As for future care costs, the judge awarded approximately $4,700. This was to reflect the likely costs of physical rehabilitation, medical transportation, and personal care for a hypothetical future surgery.

Altogether, the judge awarded total damages to the plaintiff in excess of $173,000, the bulk of which was for his pain and suffering arising from the accident.

Allocating Court Costs: Was it Reasonable for Plaintiff to Reject Defendant’s Settlement Offer?

One other issue of note arose in this litigation. After the entry of judgment, the parties were unable to reach an agreement on the payment of court costs. The root of the disagreement was each party’s respective pre-trial offers to settle. Normally, B.C. court rules award costs to the prevailing party. In this case, that was the plaintiff.

But the judge may also consider whether or not a party rejected a “reasonable” settlement offer and thus unnecessarily prolonged the litigation.

As Justice Forth explained, the issue is not merely whether the settlement offer is close to the actual amount awarded by the court after trial. Rather, the court must look at whether the offer was reasonable at the time it was made.

In this case, the defendant made a pretrial settlement offer of $175,000, which the plaintiff rejected as unreasonable.

Justice Forth said given all the facts available to the plaintiff before the trial, his rejection was itself a reasonable act, even though the Court’s final award was nearly identical to the defense’s offer. Among other reasons, the judge noted that the plaintiff had expert testimony that suggested a much higher risk of the potential need for future surgery–between 28% and 42%–than the Court ultimately determined.

Contact a Vancouver Car Accident Lawyer Today

Calculating damages in a personal injury case is never an exact science. This is why it is important to work with an experienced Vancouver car accident lawyer who knows how to investigate and build a case where complex issues of damages, like the need for future surgery, are involved. Contact Preszler Law Firm at 1-844-373-8202 if you have been in an accident and would like to schedule a free consultation with a skilled lawyer today.

Sources:

http://courts.gov.bc.ca/jdb-txt/sc/18/01/2018BCSC0106.htm

http://www.courts.gov.bc.ca//jdb-txt/sc/18/06/2018BCSC0696.htm

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