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Medical bills in personal injury trials: Ask the jury to award them? The “low anchoring” effect of medical expenses.

Imagine you’ve been injured in a construction accident. Or an auto collision. The medical bills arrive, and accumulate. You have high-deductible health plan and you’ve paid thousands of dollars out of pocket. Or you don’t have insurance at all and are facing tens of thousands of medical bills. And you’re left with permanent impairment and permanent injuries.

The insurance company and you (and your lawyer) can’t reach a reasonable settlement, so you’re going to trial. You have to decide how to present your case, including what items of “damages” you are asking the jury to award. A list of these damages is made. You’ll ask the jury to require the defendant to pay your medical bills, right? It’s obvious. The defendant’s negligence hurt you, and caused you to run up tens of thousands of medical bills. So, ask for the medical bills. It’s a no brainer, right?

Wrong. It’s counterintuitive, but if the jury is asked to include medical bills in the judgment, it’s highly likely that the jurors will fixate upon the amount of medical bills and use them as a benchmark for all other items of damages, such as impairment, loss of quality of life, and pain and suffering. So, asking for $90,000 in medical bills puts in the juror’s mind that your lost quality of life, or your impairment, is “worth” $90,000. Or $45,000. Or less.

anchor

The court will instruct the jury along these lines:

If you find Defendant liable to Plaintiff, you must then decide the full amount of money

that will reasonably and fairly compensate Plaintiff for each of the following elements of

damages proved by the evidence to have resulted from the fault of any Defendant:

 

(1) The nature, extent, and duration of the injury.

(2) The pain, discomfort, suffering, disability, disfigurement, and anxiety already

experienced, and reasonably probable to be experienced in the future as a result of

the injury.

(3) Reasonable expenses of the necessary medical care, treatment, and services

rendered, and reasonably probable to be incurred in the future.

(4) Lost earnings to date, and any decrease in earning power or capacity in the

future.

The strength of the anchoring influence on judgment was demonstrated in a classic study by researchers Tversky and Kahneman. In that study, the participants were asked by the researchers to estimate the percentage of African countries in the United Nations, after first guessing whether the percentage was higher or lower than an arbitrary number that ostensibly had been selected by spinning a wheel of fortune.

When the wheel of fortune landed on 65 percent, the estimates by participants averaged 45%; when the wheel value (the anchor) landed on 10 percent, the average estimate was 25%. Therefore, even this arbitrary and logically irrelevant anchor had a substantial impact on estimates, despite the fact that the participants could see that the spinner produced an arbitrary value. Other research on anchoring has demonstrated that the anchoring effect is extremely influential.

In theory, there is no relation between the amount of the medical bills and the degree of the injury.

“It is immediately apparent that there is no logical or experiential correlation between the monetary value of medical services required to treat a given injury and the quantum of pain and suffering endured as a result of that injury. First, the mere dollar amount assigned to medical services masks the difference in severity between various types of injuries.”

Martin v. Soblotney, 502 Pa. 418, 466 A.2d 1022 (1983)

It is frightening and anxiety-producing to “go naked” and not pursue medical bills, but lawyers and their clients who take the plunge are often rewarded for taking the apparent risk. In the case of Romero v. Construction  Corp., for example, which was tried by your writer (Jim Gigax), Mr. Romero abandoned his claim for $80,000 in medical expenses. Even more frightening, Mr. Romero had no other claim for economic damages, since the court had ruled that he could seek wage loss (past or future) because he was an undocumented alien or “illegal immigrant.”

We simply asked for damages for impairment, pain and suffering and disability. The jury awarded $1,000,000.

http://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/archive/2012/08/25/1m-federal-jury-verdict-for-injured-undocumented-worker-romero-v-reiman-corp-d-wyo.aspx