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$1,750,000 for closed head injury in
rollover.
Dr. X was a belted passenger in a high-speed, roll-over,
freeway accident. His multiple fractures of C-6 and C-7 and
his closed head injury made it difficult for him to continue
working as a physician. Since his insurance company could
not effectively contest the cause of the rollover, or his
medical condition, they tried to deny full coverage by
arguing that at 56 he was near retirement anyway, didn't
need to work, and had previously announced an intent to
retire even before the collision. Our task was to establish
that without the accident he would have continued to work,
and that with the accident his loss of earning capacity was
the insurance carrier's responsibility.
Dr. X had graduated from an Ivy League university, followed
by medical school at a state university, then moved to a
small town to join a family practice clinic, which
eventually became the largest family practice group in the
area. He worked hard and was well compensated.
When he attempted to return to work, three hours per day for
three days per week, his own doctor noted that he was
"having significant difficulty with multi-tasking." His
treating neurologist noted "difficulties with cognition that
are interfering with his work activities." His
neuropsychologist noted that "Given this man's cognitive and
neurological conditions, it is likely that he will be unable
to return to his pre-accident function as a physician. As
leader of a medical team, he cannot afford to delay decision
making in critical emergency situations. Yet his attentional
problems, particularly when he becomes fatigued, may very
well lead to increased errors and lapses in judgment. Given
that he is a perfectionist, and given his sense of
responsibility, the emotional burden of high level
performance expectations will likely impact him, making it
even more difficult for him to perform." These treating
physician's conclusions were supported by the fact that his
partners at the clinic that he founded, after allowing him
to try working part time, asked him to retire.
The critical question then became: how long would he have
continued to work as a physician, had the accident not
occurred, i.e. what amount of income had he lost?
We cited data from the Bureau of Labor Statistics indicating
that 56-year old white males with l5 years or more of
schooling have a work life expectancy of an additional ten
years. The BLS data indicated that more highly educated
individuals tend to have a longer work-life expectancy,
however the BLS did not look at education beyond 15 years,
even though doctors typically have over 20 years of
schooling and a medical degree. Consequently we had to find
more specific information on physician work-life expectancy.
The best available data on physician retirement
probabilities was in the article "The Effect of HMO
Penetration on Physician Retirement" published in the
December 2000 issue of Health Services Research. We asked a
professor teaching Statistics and Research Methodology to
pull out the data in that article to determine the likely
remaining career expectancy of a physician such as Dr. X:
age 56, male, board-certified, AMA member, practicing
general family medicine, in a small community.
It turned out that Dr. X was in the exact category of
physicians who tend to work longest before retiring:
- Males work longer than females;
- General practitioners work longer than surgeons;
- Caucasians work longer than minority members;
- AMA members work longer than non-AMA members;
- Board Certified physicians work longer than
non-Board Certified physicians.
In short, the highly qualified, board-certified, AMA
member, male general practice physicians working in small
towns tend to work essentially forever -- perhaps because
this is a personally rewarding practice style. The professor
of statistics estimated the remaining career expectancy of
someone with these characteristics as approximately 17
years. (In contrast, female surgeons, who are not board
certified, retire approximately five years earlier, on
average.)
The data supported Dr. X's stated intention that had the
accident not occurred he would have worked at least an
additional ten years prior to retirement.
The post-accident vocational assessment was performed by
Stan Owings, M.A., past Administrator of Rehabilitation
Services for the Washington State Department of Labor &
Industries, where he supervised a staff of 110, past
President of the Professional Rehabilitation Organization of
Washington. His conclusion:
His inability to work effectively in regard to
multi-tasking and in stimulus that exists in any work
environment make employment in any job in a usual
competitive employment setting questionable. . .The
research completed identified no medically related
employment areas that are reasonably available...
After extensive research, it was the opinion of Owings &
Associates that Dr. X's probable future earning capacity
would be limited to $30,000 per year, a loss of $120,000 per
year.
Based on his consistent earnings history, the Bureau of
Labor Statistics work life estimates, the vocational
assessment, Dr. X's life-long, strong work ethic, and his
stated intention, forensic economists estimated the economic
loss occasioned by this disabling closed-head injury and
multiple spinal fracture, high-speed rollover as $1,274,087.
In addition to the loss of future earning capacity, Dr. X
lost the intangible rewards of practicing medicine. What
does it mean for a man who has spent his entire life working
to become a doctor to no longer be able to function as a
doctor? What impact does that have on his self-esteem and
self-worth? Here was a man who had delivered over 800
babies, but who could no longer work in an operating room.
Mediation was scheduled before Larry Levy of Washington
Arbitration and Mediation Services, with an arbitration with
John Cooper of the same organization should the mediation
not lead to a settlement. Based on the expert testimony
regarding likely future earnings, the claim settled for
$1,750,000. Dr. X was represented by WSTLA Eagle member Dean
Brett of Bellingham's Brett & Coats PLLC. |
