Calculating Future Medical Costs - Maximize Your Client's Personal Injury Spine Claim
By Cutright Legal Consulting
Surgical Medical Malpractice and Personal Injury Spine Consultant
Surgical Medical Malpractice and Personal Injury Spine Consultant
Future medical cost calculations are a piece of the pie that is repeatedly left out of settlement offers and awarded settlements. The reality is that no one has a crystal ball or the ability to predict for certain which clients will need minor or major medical and or surgical intervention after their current injuries are managed or “fixed”.
Part of the issue pertains to the ability for counsel to convey a very possible scenario based on real medical costs and peer reviewed published scientific literature not to mention what the cost of care will be in the future. Third party payers have been able to pay less and less every year due to contract negotiations and bundled payments. However, it seems the patients who pay cash from a settlement are paying more for medical expenses. In this environment of inconsistent consumer pricing, attorneys are facing a greater challenge year in and year out convincing the powers that be how much money their client will need as a result of the injuries that they sustained (confusion factor). This is overshadowing their original argument of negligence.
Clients are settling for less than what they need due to the confusion factor, the need to get out of chronic medically refractory pain, and the fear of risking permanent nerve damage. Attorneys are in agreement to lower settlements due to the same fears as the client but also they are getting guaranteed payment in a timelier manner prior to valuable resources in the form of time and money are expended to deeply. Settling early is lowering the attorney’s overall risk.
For this article we will examine a factious case involving a 30 year old male that has been involved in a motor vehicle accident (MVA) and found to not be at fault. His current income is $50,000 per year (loss of income calculation). This client had no previous documentation of back pain or injuries. He complains of lower back pain after the MVA. To begin the treatment process he contacts an attorney who encourages him to seek diagnostic testing with a specialist. After his initial appointments and ordered tests are completed his Personal Injury Protection (PIP) insurance has reached its $10,000 limit. He will now have to seek conservative management in the form of interventional pain management procedures and physical therapy, under a letter of protection (LOP) with a physician and or facility that is willing to accept it.
The client failed to respond to conservative management that included facet treatments, lumbar epidural steroid injections, and a few rounds of physical therapy. His next step is surgery. His treating physician has recommended a two level lumbar interbody fusion at the L3-L4 and L4-L5 disc spaces due to ruptured or herniated discs. At this point the client has already incurred a total cost of $68,921 due to medical expenses, attorney fees, and loss of work. He is now facing a settlement worth a total of $249,173 based on medical expenses already incurred, attorney fees, loss of work, and the upcoming surgery with rehabilitation. The attorney will stand to receive $71,191.
In a perfect world this should about take care of it. However, let’s discuss some immediate dangers and long term complications that the client will face from surgery based on peer reviewed published scientific data. These statistics are for lumbar interbody fusion. Mortality rate is .67%, the prevalence of intraoperative complication is 10%, and the prevalence for post-operative infection is 8.5%. The immediate risk factor is 19.17%. Long term clinical outcome complications include worse off than prior to surgery 5%, chronic pain post operatively 30%, adjacent segment disease (disc above or below the fusion wares out due to loss of mobility) 15%, pseudoarthrosis (failure to fuse) 25%, and hardware failure (broken or lose screw) 22%. The long term complication factor is 97% for a surgery that is performed correctly. In other words only about 3% of the patients that undergo this surgery will experience full resolution of pain and symptoms requiring no further medications or medical interventions for the rest of their life as a result of the original injury. If the next thirty five years of the client’s life were a book, here is how it could possibly read.
The surgery went fine with no complications and the client returned to work after three months of rehabilitation. In postoperative year five (35 years of age) he begins to experience lower back pain so he returns to the spine surgeon. A whole new battery of images and diagnostic tests are ordered. The client is again referred to conservative management with no success. He is diagnosed with adjacent segment disease (ASD) at the L5-S1 disc space and is recommended for lumbar fusion revision surgery. Following this surgery the client ends up with chronic lower back pain and cannot return to work. Over the next five years he is on constant pain medications, undergoes more conservative management, and ends up developing ASD at the L2-L3 disc space as well requiring fusion revision surgery.
Then the client develops ASD at the L1-2 disc levels also requiring fusion revision surgery. On this surgery he develops an infection requiring another surgery for wound debridement. To make matters worse the fusion does not take and he develops a psedoarthrosis at the L1-L2 disc level requiring another fusion revision surgery at that disc space. Finally, the client develops secondary pain syndromes with a diagnosis of sacralillitis and piriformis syndrome. He undergoes interventional pain management shots and physical therapy with little success. Eventually, the client undergoes a spinal cord stimulator surgery and has now reached maximum improvement. He never works again. In this scenario the total settlement needed to last this thirty year old client until he is sixty five years old is $3,842,629. This includes medical expenses $1,159,478, loss of income $1,595,260, and attorney fees $1,097,891. There were 2,833 points of reference used for this calculation, assuming all medical cost are fixed (no consumer price index analysis applied), the client was never to make over $50,000 per year, and the attorney fees are forty percent of the settlement. Emotional pain and suffering, depression, depreciation of quality of life, pain medication addiction, and a lesser life expectancy due to loss of mobility and exercise were not even mentioned in this discussion.
In conclusion this scenario presents itself every day. Unfortunately, most personal injury settlements are settled before enough time has passed to know if the client will continue to deteriorate. Fortunately, published peer reviewed scientific data exists to support settlement claims that possibly require a lifetime of financial security due to negligence.
ABOUT THE AUTHOR: Jason Cutright
Cutright Legal Consulting was founded by Jason Michael Cutright. Mr. Cutright has been involved in the medical / surgical field for 20 years. He involvement includes surgery, organ and tissue banking for transplantation and research, national trainer for a private biotechnology company, published peer reviewed scientific publication, academic science award winner, and has held director positions for a private practice spine institute. He accomplished these feats at the University of Florida departments or Neuro Surgery and Pharmacology, University of Miami Miller School of Medicine, and Privately held companies and private practice medicine.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.For specific technical or legal advice on the information provided and related topics, please contact the author.