Defending Insureds in No or Low Medical Bill Cases: Options When Liability is Clear and Future Damages Are High

For insurers, some of the scariest cases involve clear liability (especially if the insured defendant behaved badly), low or no past medical expenses, and claims for huge future medical expenses and/or emotional damages. When these elements converge, the plaintiff's strategy is often to forego what might be modest medical expenses in order to focus on categories of damages that are subjective, based on prediction, and not easily quantifiable. If possible, plaintiffs may seek to discover and introduce evidence of other unrelated, adverse incidents with the hope of obtaining a runaway verdict or extraordinary settlement.

One strategy for counsel representing the insured-defendant in these cases may be to admit liability and focus on medical causation. Such a strategy is not without risk and may require numerous discovery fights over access to the plaintiff's medical history. Plausibility, temporality, and alternative explanations for injury must be explored. With complex injuries, plaintiffs may rely on a chain of causation.

Listen as our seasoned panel discusses best approaches when resolving lawsuits where the defendant's liability is clear and plaintiffs elect not to seek past medical expenses but to focus on recovery of future medical expenses and pain and suffering.

1. Introduction: identifying when the insured's liability is clear
   1. Type of injuries
   2. Covered and uncovered claims
   3. Multiple defendants
   4. Changing facts
2. Reasons plaintiffs forgo past medical damages
3. Admitting liability
   1. Advantages/disadvantages from insurer's perspective
   2. Advantages/disadvantages from insured's perspective
   3. Consequences for discovery: past similar incidents
   4. Keeping evidence out at trial
4. Challenging medical causation
   1. Goals of challenging medical causation
   2. Standards for determining medical causation
   3. Causation chains
   4. Challenges when seeking discovery of plaintiff's medical history
   5. Developing a theory of alternative causation
   6. Experts and treating physicians
5. Pitfalls to avoid

The panel will review these and other key issues:

• Why do plaintiffs often want to avoid introducing evidence of modest medical expenses?
• What are the risks of admitting liability, and why would the insured agree?
• To what issues other than medical expenses is past medical treatment relevant?