Proving Damages When an Elderly Person Suffers Personal Injury

Proving Damages When an Elderly Person Suffers Personal Injury

As people grow older, they usually become more susceptible to injuries and accidents. In older age, the hearing and vision start to deteriorate, and their reflexes slow down, which make seniors more vulnerable to injuries. In fact, over one million elders are admitted to the emergency room every year for traumatic injuries with slim chances of recovery.

Hard Workers Deserve It

After toiling away at work for most of their lives, most elderly people look forward to retiring and enjoying their golden years. However, when a reckless, careless, or negligent person takes away their health and mobility, the elderly plaintiffs have a right to receive compensation appropriate for their suffering. That’s where an experienced attorney can help convey the value of their elderly client’s loss during the retirement years following the injury.

The economic or special damages in cases of elderly people tend to be relatively lower because:

  • They are generally retired and, thus, they can’t claim a loss of earnings.
  • Their medical bills are paid by Medicare (Medicare has the lowest reimbursement rates for medical care in California).
  • They have a shorter life expectancy (i.e., their medical care requirements in the future will be less).

That’s why to increase the recovery rate of elderly clients, it is crucial to understand exactly how their life was disrupted following the personal injury.

Pain and Suffering Related Damages

Here’s what the general damages will cover:

  • Physical pain
  • Mental anguish
  • Physical impairment
  • Disfigurement
  • Loss of enjoyment of life
  • Inconvenience
  • Anxiety
  • Grief
  • Emotional distress
  • Humiliation

In a case involving personal injury, it is often difficult for a jury to determine the amount of money that should be awarded to the elderly plaintiff for pain and suffering. Every claim, every person, every injury, and every case is entirely different and needs independent assessment.

Hedonic Damages

The award for pain and suffering in California may include compensation for the loss of enjoyment of life by the plaintiff.  This component – the loss of enjoyment of life – is commonly referred to as hedonic damages.

Hedonic damages provide compensation for restrictions on the plaintiff’s ability to participate in and enjoy the normal activities of day-to-day life. It also compensates for limitations on the injured person’s ability to pursue his or her talents, hobbies, interests, and avocations.

To recover hedonic damages for the elderly client, the lawyer must prove what the plaintiff’s life was like before the injury and how the defendant’s negligence affected him or her. In these cases, the attorney needs to establish that the plaintiff was still enjoying an independent and fulfilling life.

Don’t Hesitate to Explain Pre-existing Conditions

If the lawyer has a clear liability case, he or she can still expect a fight with the defense attorneys on causation and damages. Most defense lawyers will argue that most or all of the elderly client’s injuries were caused by preexisting conditions and not the incident caused by the defendant.

It may be true that the elderly client will not succeed in recovering damages from the defendant for any physical or emotional condition before the incident happened, but the elderly client can certainly recover general and special damages if it is established that defendant’s conduct made his or her preexisting condition “worse.”

A Trial Preference

If the elderly client is more than seventy years of age and the case is pending in a state court in California, the client may be entitled to a trial preference.

To obtain a trial preference, the elderly clients must establish in a motion hearing that:

  • Due to their health, a preference is crucial to prevent prejudicing their interests at trial, or
  • Granting the motion will serve the interests of justice

There is no specific proof or any set criteria needed to gain a trial continuance for a plaintiff who’s over seventy years of age. However, precedent suggests that the attorney should make a factual showing that the elderly client would be prejudiced if the court doesn’t grant a trial continuance. This factual showing can be made with medical records from the doctor(s) of the elderly client.

In case the court approves the motion for a trial preference, the case shall be set for trial within 120 days from the date the motion was granted by the court. Long delays and trial continuances can prove to be devastating for an elderly client; in some cases, the clients even pass away while waiting for their rightful day in court.

Unless their case involves claims of elder abuse, the elderly client’s general damages claims against the person, who caused the injury, will be lost in the humongous pile of injury cases. Whoever said that justice delayed is justice denied wasn’t far off the mark.

Sacramento Personal Injury Lawyers

I’m Ed Smith, a personal injury lawyer in Sacramento. If you or a family member has suffered bodily injuries due to another’s fault, call me at (800) 404-5400 or (916) 921-6400 for free, friendly legal advice.

I am a member of the Million Dollar Advocates Forum and of the  Top One Percent, a National Association of Distinguished Counsel.

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