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Question 1

What is the remedy you can collect for medical expenses from a personal injury?

Answer 1

This is based on the reasonable value of the medical care and services provided. The amount that the plaintiff actually paid is evidence of reasonable value but the plaintiff gets the reasonable value, not the amount he was billed or the amount he actually paid.

Question 2

What are things that you can recover as a medical expense after a personal injury?

Answer 2

Hospital, doctor’s fees, nursing care, physical therapy, dental, drugs, lab tests, wheelchair, crutches, furniture to use at home like special beds are chairs, prosthesis, glasses, ambulance, rehab, etc.

Question 3

How does discounted billing work with regard to medical expenses being recovered for personal injury?

Answer 3

This happens when the medical provider agrees to accept less than reasonable value and gives some kind of discount because either the insurance company has an arrangement or the P is related to the provider, etc. There’s a jurisdictional split on this:
– some say that the defendant is liable for the reasonable value, even if the hospital gave a discount, because the deal with the hospital was not meant to benefit the defendant
– others say that the discounted rate is given

Question 4

If a plaintiff is injured and spends four days in the hospital, and he is billed at $1000 a day, but he submits the bill to his insurance and the hospital agrees to accept $750 a day from the insurance as full compensation, what can he recover against the defendant with regard to his hospital bills?

Answer 4

Jurisdictional split on discounts are given:
– some say the defendant is liable for the full reasonable value even though a discount was given because the discount was not meant to benefit the defendant
– others say the discounted rate is

Question 5

What happens when you receive medical care for free with regard to recovering for the personal injury?

Answer 5

You can still recover the reasonable value of those medical services because the fact that your doctor was a friend or relative and didn’t charge you should not benefit the defendant

Question 6

When there has been an injury to a minor, who has the cause of action?

Answer 6

Both the parents and the child. The parent can recover medical expenses that are paid for the child’s injury, but you cannot get a double recovery

Question 7

What do you do for recovery for medical expenses when there is an increased risk of disease, such as cancer?

Answer 7

The plaintiff must show there’s a reasonable possibility that he will develop the disease, (more likely than not to happen).

Question 8

What is the problem for getting recovery for a latent disease that you know will happen later, such as cancer because of asbestos exposure?

Answer 8

SOL. Courts generally say the SOL does not start running until the diagnosis of the later serious medical condition.

Question 9

Can a P get the costs for medical monitoring after he suffered a physical injury?

Answer 9

Yes, the cost can be given to monitor people that have been exposed to injurious agents to see if that results in an injury in the future as long as the plaintiff can demonstrate the clinical value of early detection and as long as these costs do not exceed the loss. This is given even though the plaintiff may have no present injury

Question 10

What are the elements that you have to prove if you want to recover for medical monitoring as a medical expense for personal injury?

Answer 10

• plaintiff must show he was significantly exposed to a proven hazardous substance through the negligent action of the defendant
  – and as a proximate result he suffered an increased risk of contracting a serious latent disease
  – and the risk makes periodic diagnostic medical exams reasonably necessary
  – and monitoring and testing procedures exist that make early detection possible and beneficial

Question 11

Can you recover medical monitoring costs if you were just merely exposed to something that could eventually cause a latent disease?

Answer 11

No, there would’ve had to have been significant sustained exposure

Question 12

What is the deal for future medical expenses being recovered?

Answer 12

They are adjusted to the present value and they have to be established with a reasonable probability [that the plaintiff will need them for his injuries - cannot be speculative]. These are usually shown through expert testimony

Question 13

Can a P recover under medical expenses for the loss of chance of survival or a shortened life expectancy?

Answer 13

Yes. If the plaintiff had a life expectancy of 10 years if the cancer has been properly diagnosed, but because of the doctor’s fraud he only had five years, he can recover

Question 14

What is involved in loss of consortium?

Answer 14

This is a loss that the plaintiff suffers because of deprivation of a family relationship. This is special damages, so it must be pleaded and proven. It is often given for spouses, but there is no clear majority on whether it will be given for children.

Question 15

When will the loss of consortium absolutely not be given?

Answer 15

If the loss was caused by the other spouse

Question 16

What are the elements that have to be proven for loss of consortium?

Answer 16

You have to provide credible evidence that the injury disrupted the marital relationship either emotionally or economically

Question 17

What are different things that would be included in loss of consortium?

Answer 17

• loss of relationship: love, solace, companionship, sex, affection, guidance, procreation, moral support
  – loss of services: maintaining a home, caring for the kids, housekeeping

Question 18

What do you recover under loss of consortium?

Answer 18

The cost to replace the services and support that the spouse previously provided.

Question 19

What is involved in the category of “injuries that result in death“?

Answer 19

– wrongful death

– survival actions

Question 20

At common law can you recover for wrongful death or survival actions?

Answer 20

No, because at common law the cause of action dies with the plaintiff

Question 21

What is involved in compensation for wrongful death?

Answer 21

This compensates individual beneficiaries for the loss of the economic benefit that they reasonably expected to get from the decedent in the form of support, services, or contributions during the remainder of his lifetime if he had not been killed

Question 22

Who can bring a wrongful death suit?

Answer 22

Decedent’s spouse, domestic partner, kids, issue of dead kids, or if he has none of those it can be brought by anyone that would take under intestacy

Question 23

In what situation would loss of consortium not be given?

Answer 23

If it can be shown that the decedent did not have a close relationship with the person bringing the claim

Question 24

If an adult child is bringing a claim for wrongful death, what does the court consider?

Answer 24

The closeness of the relationship and the dependence, because this is usually limited to pecuniary losses that are suffered by the decedent or his estate

Question 25

What are the two types of wrongful death statutes?

Answer 25

• loss to the estate statutes

- loss to survivors statutes

Question 26

What is involved in wrongful death “loss to estate statute”?

Answer 26

The decedent’s work-life expectancy is determined and multiplied by his projected earnings to figure out his lost earning capacity, then reduced to present value. This focusses on what he would’ve earned if he had not died

Question 27

What is involved in the subcategory of wrongful death that gives a loss to survivors?

Answer 27

This considers regular contributions that were made by the decedent while he was alive to his survivors [parents, spouse, kids] and estimates contributions that would have been made in his life if he had not died, then it is discounted to the present value. The focus is on what the survivors would’ve gotten if he had not died. The lifetime earnings are reduced by the money that he would’ve spent on himself during his lifetime

Question 28

What are the things you can usually get under wrongful death?

Answer 28

- loss of support
– lots of services
– loss of society
– funeral and burial expenses
- loss of inheritance
- grief and sorrow

Question 29

What’s involved in loss of support as a subsection of wrongful death?

Answer 29

This is contributions that the decedent would’ve made to others during his life with a focus on whether the beneficiary was legally entitled to support. It considers:

• if the decedent was an absent family member
• his disposition to work
• his inclination to support
• his personal habits like drinking or gambling
• his attitude toward the P

Question 30

What is involved in loss of services as a subsection of wrongful death?

Answer 30

Personal, advice, training, homemaking, instruction, nurture, guidance, counsel. What is given is what the marketplace would pay a stranger with similar qualifications to do these things

Question 31

What does loss of society mean as a subsection of wrongful death?

Answer 31

Loss of love, comfort, affection, solace, and sexual relations

Question 32

What does a person get under wrongful death for funeral and burial expenses?

Answer 32

The reasonable value of these things

Question 33

What can you recover under loss of inheritance as a subsection of wrongful death?

Answer 33

Money the decedent would have accumulated if it was not for death and then given to his heirs or beneficiaries. The plaintiff must provide proof of more than just expectancy of inheriting.

Question 34

What is a survival action?

Answer 34

This allows the decedent’s estate to bring some tort actions for wrongful death of the decedent to recover pre-death damages suffered by the decedent. His personal injury claims survive his death for an applicable period and they pass to the decedent’s successor in interest or personal representative.

Question 35

For survival actions, what are the damages limited to?

Answer 35

The loss the decedent sustained before death, including penalties, punitive, or exemplary damages that the decedent would’ve been entitled to recover if he had lived, but they do not include pain and suffering or disfigurement

Question 36

Do survival actions create a new cause of action?

Answer 36

No, they just transfer the decedent’s cause of action to the person that is designated in the statutory scheme to pursue it. You can often get bodily injury claims but not other personal injury claims like defamation or invasion of privacy