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Life-Changing Injury Due to Negligence or Malpractice

Living Your Life During A Case

Laurence M. Deutsch and Steven E. North

You've come to us with a legitimate case: A life-changing injury has occurred due to the negligence or malpractice of another, over which you had no control. Now what?

While the decision to bring a case is itself the result of a careful investigation and a careful decision by both client and attorney, we are often asked by clients how they can "live their lives" during the time a case is pending. Although we pride ourselves on prosecuting cases as quickly as possible, the reality is that cases, particularly for complex injuries or a medical malpractice, are typically measured in years, not months or weeks.

Patients ask us if they should go back to work. If they are unable to work, they worry about how they can meet their daily expenses. While we will be seeking full compensation either in settlement or in trial, people are often legitimately stressed financially and personally during the interval between bringing a case and attaining a hopefully successful result.

We take a personal approach with all of our clients, providing tailored advice to their situations during the pendency of a case. There are however some recurring issues during a case that are worth knowing for anyone considering bringing one.

To the question about whether an individual should attempt to resume activities to the best extent they can, we answer with a resounding yes. We never advise clients to limit their activities during a case beyond the extent to which they are limited by their physical condition. We obviously can't advise a person confined to a wheelchair to take up jogging. However, we can and do routinely advise all of our clients, even with the most severe injuries imaginable, to undertake physical and social activities to the full extent to which they are capable.

Sometimes people think that by appearing to do less than they can, they are "adding to the value of their case." The opposite is true. We only take cases of serious injury when there is a legitimate loss of function or loss of quality of life. In such cases, we do not have to try to inflate a claim, nor would we. In fact, we find that clients and plaintiffs who are properly instructed to attempt to do the most they can, achieve the best results in their cases.

Jurors are regular people. Most people like to reward those who are doing the best they can under difficult circumstances. Therefore, although everyone's circumstance is different, we can as a rule say that we advise all of our clients to do the most of which they are capable. This is not only the right thing to do from a perspective of personal integrity, but it is also the most successful litigation strategy. It precludes any "taint" to the client from the perception that he or she may be trying to exaggerate his or her injuries.

Another recurring issue is how people can obtain some financial resources during the pendency of a case. Sometimes people have to go from being financially independent to beig more reliant on government benefits. Again, this is a case-by-case issue, but we do often have to advise people to seek alternative sources of medical insurance such as Medicaid if they qualify. Some people have to rely on more comprehensive types of public assistance.

The "Catch-22" of this type of dependence is that people who rely on governmental benefits may often have a "lien" placed on some or all of the proceeds of a case. That is, Medicare or Medicaid may pay for a person's medical care but will typically seek repayment for a substantial part of its expenses from any settlement. This is an unfortunate but necessary trade-off for a person who previously relied on or is being forced to rely on a government benefit to live during the dependency of a case.

Many people ask if they can or should "borrow against a case." There are finance companies that offer extremely high-interest loans against the possibility of future litigation recovery. Generally speaking, we advise plaintiffs against pursuing loans of this type. They are sometimes structured to avoid literal interest charges, which can be so high as to be against "usury laws." However creatively structured, the cost of these loans is often simply too high given the amount of interest that would have to be repaid during the lifetime of the case.

Nonetheless, there are certain circumstances in which individuals in extremely dire straits may benefit from a limited approach to this type of pre-settlement funding. In some circumstances, we have put people in touch with lenders of relatively higher integrity than others in this area to achieve the best terms they can in this context. In such situations, though, we will typically advise the person to borrow the least amount necessary for the shortest interval of time required. Again, this is to mitigate what would otherwise be extremely onerous interest charges.

Advising clients about how to live "during a case" is one of the more challenging and to some extent rewarding parts of what we do. The close personal attention we give to cases and our relationships with our clients come into play in this area. Although our own fee will not be changed by our client’s quality of life during a case, we take pride and considerable satisfaction in getting to know our clients so as to help them navigate their lives during the case.