Traumatic Brain Injuries – Assessing the Cost of Future Care

The last six years saw Ontario courts award record-breaking damages to plaintiffs for their traumatic brain injuries. For example, in Marcoccia v Gill [2008]¸ the plaintiff suffered a severe traumatic brain injury to the frontal lobe in a motor vehicle accident. Marcoccia, who was 20 years old at the time of the accident, was left with severe behavioural disabilities and was unable to control emotions or live independently. He required 24/7 care and was rendered incapable of working for the remainder of his natural life. The courts assessed his damages at $16.9 million. The 2008 cases of Gordon v Greig and Morrison v Greig saw two plaintiffs arising from the same accident involving a drunk driver. Gordon suffered a catastrophic brain injury was left without bladder and bowel control, sense of smell, taste and hunger and loss of temperature control and sexual function. Morrison’s spinal injury left him with paraplegia. The court awarded Gordon $11.5 million in damages and Morrison was awarded $12.3 million. More recent cases like Sandhu v Wellington Place Apartments [2008] and MacNeil v Bryan [2009] saw awards up to $18.5 million. Upon first glance of the multi-million dollar awards, it is hard to resist an assumption that we are entering a golden age of plaintiff-sided decision making and over inflated awards. However, none of these cases show a new legal principle, or a change from past reasoning. In this week’s blog entry, we examine the legal principles behind future cost quantifications and what factors you need to consider with your traumatic brain injury lawyer when making a claim. The Principle of Restitutio in Integrum “Full Compensation” The legal principles for the assessment for future care claims can be traced back to a trilogy of Supreme Court of Canada cases. In Andrews v Grand & Toy Alberta Ltd [1978] Dickson J. stated that “full compensation” is the main objective for courts deciding on cases of severe injury. In the context of assessing future care claims, the court in Andrews insisted that the plaintiff should be awarded the most advantageous care possible and could not be forced to mitigate his or her loss by accepting a lesser standard. McLachlin J. in the two subsequent cases of Watkins v Olafson [1989] and Ratych v Bloomer [1990] reaffirmed Dickson J.’s line of reasoning by stating that the plaintiff must be awarded “full and adequate compensation” and “given damages for the full measure of his loss, as best as can be calculated”. In addition, the courts have historically set a low standard of proof when awarding future care claims. In order for the court to conclude that there is a real and substantial risk of a future loss, the plaintiff need only establish that he or she is at risk of a future pecuniary loss. Justice does not require severely injured plaintiffs to just “get by” or “make do” with the cheapest possible care. The Court rejects this approach in support of awards meant to provide a high standard of care. Professor Cooper-Stephenson has described this as “a very high standard of post-accident care” which is meant to anticipate almost any expense that will facilitate physical and mental recovery. As such, the standard of future care for an injured Plaintiff is higher than that normally provided under statutory compensation and rehabilitation schemes. It is important to note that the Court was not prepared to have the level of past care dictate the level of future care. The sole consideration is to attain a level of care that would be most beneficial to promote the physical and mental well-being of the plaintiff. This was evident in Morrison v Greig where Ryan Morrison underwent stem cell surgery in Portugal followed by an intensive rehabilitation program in Michigan to increase his chances of being able to walk again. Glass J approved this alternative form of surgery as a reasonable medical procedure that was not available in Ontario which had a substantial possibility of success and therefore awarded Mr. Morrison the costs associated with the procedure. Factors to Consider when Quantifying Damages for Future Cost of Care 1. Medical Expenses As shown in Morrison v Greig the advancement and availability of new medical procedures is one of the factors that accounts for the rise in court awards. Over the years, both medical professionals and counsel have become more sophisticated in their understanding of serious brain and spinal cord injuries, and as such have developed life care plans to address these impairments. The biggest factor of most life care plans are costs of attendant care that an injured person will need. The availability of volunteer support from friends and family has been rejected as a factor that could diminish the quantum of award. The court had stated in Marcoccia that for the purposes of assessing future claims, the family must be taken out of the picture. As such, it must be assumed that the plaintiff may not continue to live with their parents and be allowed to live in an apartment with attendant care as needed. In other words, damages for future care should be quantified on the basis of what it costs to purchase care in the market place. Brennan v. Singh [1999] encompassed this idea by stressing that injured plaintiffs are entitled to compensation for the value of the services they require, regardless of whether or not services are rendered to them by member of the immediate family. With an emphasis no longer on time, but rather level of care, the value for such services on the market has considerably increased over the years. For example, in MacNeil, the court accepted that the plaintiff required 8 hours a day (ranging anywhere from $24.00/hour to $52.00/hour) of care from a rehabilitation support worker (RSW), who could facilitate her involvement in community and volunteer communities as a part of an ongoing brain injury treatment. This was in addition to the 16 hours a day ($15.00 hour) of basic supervisory care from a personal support worker (PSW). Compounded by an assessed life expectancy RSW fees accounted for almost $4.5 million out of the $15 million cost of future care awarded to MacNeil. 2. Guardianship and Management Fees In addition to cost of medical services, alternative treatments and general inflation, the courts have recognized the cost of guardianship and management fees. Usually, family members of an injured claimant who receives future care cost award in the millions of dollars do not have the expertise on how to properly invest this money for the benefit of the claimant. Therefore, the investment and management of these funds becomes the responsibility of a professional guardian, such as a trust company. This cost is to be calculated after a claimant is awarded a lump-sum at trial. Such sums can be considerable. In Gordon, the fee was more than $520,000 and in MacNeil it reached as high as $830,000. Such fees are intended to cover the fees that the injured person will incur to amend management plans, bring motions to the court for advice and direction, and pass accounts and professionally manage the funds. For example, in Sandhu, a case involving a child falling out of an apartment building window, the court estimated a lifetime of legal fees and management fees to be valued at $400,000. Conclusion With the continued increase in the cost of health care expenses at rates greater than the rate of inflation, we can expect a continuous rise in personal injury awards. To ensure adequate compensation for you and our loves ones it is of the utmost importance that you develop the necessary evidentiary foundation in order to cover future economic losses. At Edson Legal, we will provide the appropriate support through arranging assessments with expert physicians and other health practitioners for each item recommended by a life care planner, along with providing a solid evidentiary foundation to establish the need for management and guardianship fees. With over 30 years of experience, we are here to ensure that you and your loved ones get the best care possible and do not settle for a lesser standard.