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Someone injured in an accident may not be finished with medical treatment when a case is ready to be tried or even by the time the case is tried. A seriously injured person may never be finished with medical treatment. It is always a case-by-case basis. An injured party, though, is entitled under Tennessee law to recovery of future medical expenses if the injured party can prove the need for future medical treatment and costs associated with the care.

Proving the reasonableness and necessity of past medical expenses looks a little bit different than proving future medical expenses. For example, the medical expert or treating physician in a personal injury case may be presented with the information concerning the event (car accident, fall, etc.) and subsequent treatment. The question may be straightforward. “Doctor, in your opinion, was the medical treatment that my client received both reasonable, necessary and causally related to the accident?” Past event. Past treatment. The doctor comes in for clean-up.

Future medical expenses and future medical treatment can be more challenging. Any number of factors can come into play when analyzing whether a person is going to need future medical care: lifestyle, pre-accident health, responsiveness to treatment, compliance with physician’s orders, and the list goes on and on.

Jury awards cannot be speculative. A jury award must be based on something, right?  I call it an anchor. I think juries must be able to anchor their awards and tie their awards to a number or set of numbers. For example, past or future medical expenses and lost wages and even pain and suffering may be based on the anchored numbers. Future medical expenses are no different. There is plenty of case law in Tennessee that discusses this issue and lets us know what juries cannot do, which, in turn, tells attorneys what they need to do.

“In a personal injury case, damage awards for prospective medical expenses may be awarded when the effects of the injury will require the injured person additional medical treatment.” Henley v. Amacher, 2002 Tenn. App. LEXIS 72 at *45. “However, damages for future medical expenses may not be awarded when the damages are based on speculation or conjecture.” Overstreet v. Shoney’s, Inc. 4 SW 3d 694, 703 (Tenn. Ct. App. 1999). “To remove awards for future medical expenses from the realm of speculation, persons seeking future medical expenses must present evidence (1) that additional medical treatment is reasonably certain to be required in the future and (2) will enable the trier-or-fact [sic] to reasonably estimate the cost of the expected treatment.” Henley v. Amacher, 2002 Tenn. App. LEXIS 72 at *45.

In my experience, there are few things more empty in personal injury law than a plaintiff who makes a settlement demand and attempts to make a strong case for future medical expenses with little or no information to support the claim. “Look at their treatment history;” or, “he or she are still hurting.” All of that may be true. Future medical treatment may be inevitable. Want a shot at recovery for future medical expenses? Prove’em up.

Tommy Santel is a co-founding partner of Santel | Garner. Tommy is a former government prosecutor. He is a Tennessee Supreme Court Rule 31 General Civil Mediator. Tommy’s practice areas include criminal defense and civil litigation.

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