Understanding “General Damages”
By Adler Giersch PS
Returning a trauma-patient to pre-injury condition and function is universally recognized by all licensed health care professionals as a core component of their mission and practice. The treatment and healing process a patient goes through from acute injury, to improved health, to maximum improvement is often recorded to some degree in the provider’s records and is used by the patient’s attorney, insurance adjusters and the insurer’s attorney to assess the ‘pain and suffering’ element in a case. In the legal-insurance world ‘pain and suffering’ is part of a larger concept known as “general damages”. General damages is intended to include the day-to-day difficulties, limitations and/or impairments for the injured person.
There is a legal right to receive compensation by the injured party when proof is established for pain and suffering, disability, impact on relationships with spouse and other family members, limitations in activities, and reduction in quality of life. Called general damages, it encompasses changes in the injured patient’s circumstances proximately caused by the traumatic event as established by health care providers, expert witness and lay (non-expert) witnesses through daily chart notes, narrative reports, or testimony.
General Damages is the element of damages that provides for fair compensation to the injured person above and beyond the actual costs and financial losses of treatment, income lost, and other out-of-pocket expenses. General damages are often more difficult to quantify as there is no bill or set standards for the worth of losing the ability to perform activities of daily living, like picking up your newborn to breast-feed or nurture because of a physical injury that prevents or impairs that activity. Despite the disagreement between attorneys and insurance adjusters on the value of this element of damages, all agree that the pain endured and quality of life changes imposed from a traumatic injury are in many ways the most critical components in a traumatic injury case.
When the patient’s challenges with their normal activities of daily living are recorded in the treatment chart, that information takes on great significance, especially for the insurance adjuster. The high regard given to matters discussed in provider records for veracity and reliability is formalized in the evidence rule which make that information admissible despite it being recorded based on what has been said by someone else:
Evidence Rule 803 (a)
. . .
(4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
A provider’s health care records are most helpful in establishing general damages when they contain two parts. The first includes noting examination findings to support the diagnoses such as muscle spasm or tenderness with palpation, range of motion loss, sensitive areas on palpation, neck guarding, sensitive areas on palpation, neck guarding, abnormal head posture, muscle weakness, sensory changes to touch or pin prick and imaging findings from x-rays, CT, EEG, or MRI. Then provide a diagnosis that supports those findings.
The second part is when those exam findings and stated diagnoses are linked to the day-to-day activities of daily living the patient faces as a result of their injuries. Brief queries by the provider to the patient regarding the actual real life impacts in four key areas provide a significant record for the injured person. These areas are work, domestic activities, household activities, athletic/social activities. For example, the patient may not be able to mow the lawn or not able to take the walks or workout as needed to maintain basic health. Also, recording in the chart those duties the injured person must perform because they cannot be avoided, such as going to work due to their financial circumstances or caring for their young children, along with how these tasks have been made more difficult due to the injuries is also significant. Understanding the patient’s ADLs (activities of daily living) also assists in developing and refining the rehabilitation plan, providing specific guidance on activity limits that will reduce exacerbations and mitigate the potential for prolonged recoveries.
When the health care provider makes the connection between the patient’s pain complaints, their quality of life, and functional challenges in ADLs, the health care records help serve as excellent proof of general damages, as the patient moves through rehabilitation toward maximum medical improvement. The records serve to highlight limitations and choices which have impacted quality of life, and whether they may continue to do so into the foreseeable future.
Experienced counsel who represent those with traumatic injury clients are best able to understand and use documented records to greatly enhance the recovery and more promptly resolve the patient’s claim. At the law firm of Adler Giersch PS we stand ready to assist your injured patients with all aspects of their claims for fair compensation following an injury through our offices in Seattle, Bellevue, Everett and Kent.