Serious personal injury cases are not proved by medical bills alone.

A lawyer may need a medical expert because the treating doctor will not testify, an engineer or forensic expert to explain how an accident caused the injury, a life care planner to identify future medical needs, and an economist to calculate the long-term financial loss.

In some cases, photographs and medical records are still not enough. A day-in-the-life video may be needed to show an insurance company, mediator, judge, or jury what the injury actually means in the client’s daily life.

These experts and demonstrative exhibits can be expensive. In many contingency-fee cases, the law firm advances reasonable litigation expenses and is reimbursed from the client’s recovery in accordance with the written representation agreement.

The reason for hiring experts is not to make an injury appear worse than it is. The purpose is to take complicated medical, scientific, and financial evidence and present it in a way that an insurance company, judge, or jury can understand.

Why do we need a medical expert if the client already has doctors?

Our first goal is usually to obtain the necessary testimony from the client’s treating doctors.

The treating physician knows the patient, ordered the testing, prescribed the medication, performed the surgery, and observed the recovery. That firsthand knowledge can be extremely valuable.

The practical problem is that many treating doctors do not want to become witnesses.

Some physicians do not like giving depositions. Even fewer enjoy stepping into a courtroom. They have patients to see, surgeries to perform, hospital responsibilities, and medical practices to operate.

Many doctors went into medicine because they wanted to practice medicine—not participate in litigation.

In fact, some medical providers are reluctant to accept patients whose injuries arose from motor vehicle accidents or other incidents that could result in a lawsuit. They are concerned that treating the patient may eventually involve subpoenas, records requests, depositions, and courtroom testimony.

A treating doctor may be willing to explain the treatment that was provided but unwilling to offer an opinion about whether the accident caused the injury. Another doctor may not want to testify about permanency, future treatment, or whether an accident aggravated a preexisting condition.

Some doctors simply will not testify at all.

When a treating physician is unwilling or unavailable, the client’s attorney may have no practical alternative other than hiring a qualified medical expert in the appropriate specialty.

What does a retained medical expert do?

An experienced medical expert understands the litigation process.

The expert can review the client’s medical records, diagnostic imaging, prior medical history, treatment course, and other relevant evidence. The expert can then provide an independent medical opinion concerning issues such as:

Medical experts are also familiar with depositions and courtroom testimony. They understand that their opinions will be examined by the insurance company’s attorneys and that they must be prepared to defend those opinions under cross-examination.

The goal is not to find an expert who will say whatever helps the case. A good expert must be credible, independent, and capable of explaining complicated medicine in a way that ordinary people can understand.

Sometimes medical causation requires more than a doctor

Not every causation issue is purely medical.

Sometimes we need engineers, accident reconstructionists, biomechanical specialists, or other forensic experts to explain what physically occurred and how the forces involved in the accident could have produced the injury.

A medical expert may explain the diagnosis and the effect of the injury on the human body.

An engineer or forensic expert may explain the accident’s mechanism: how the vehicles moved, the direction and severity of an impact, whether a product failed, or how a dangerous condition caused the incident.

This may become especially important when the insurance company argues that an accident was not serious enough to cause the claimed injury.

In those cases, the medical and engineering testimony may work together. The physician explains the injury, while the engineer or forensic expert explains the event and the forces involved.

Lost earning capacity is more than a salary calculation

The economic damages in a serious personal injury case can be far more complicated than multiplying a person’s annual income by the number of years remaining before retirement.

Income changes. Inflation changes. Benefits matter. Retirement contributions matter. The present value of money matters.

Many people also do not earn a simple fixed salary.

An injured person may receive:

A self-employed person or someone who works in construction may have substantial fluctuations in income from one year to the next. A younger employee may have been on a path toward promotions and increased earnings. A person who can no longer perform the same occupation may be able to work in another field but at a substantially lower income.

These losses cannot always be explained by handing the jury a tax return and asking it to do the math.

Vocational experts and economists may be needed to transform the raw employment and financial information into an understandable and supportable analysis.

A carpenter’s future income is not just a number on a pay stub

I handled a case involving a client who worked as a carpenter before suffering an injury that prevented him from continuing in that occupation.

His income fluctuated significantly over the years.

That created difficult questions.

Which year accurately represented his earnings? Should several years be averaged? How should slower periods in the construction industry be treated? What would he likely have earned as he became more experienced? If he could perform a different type of work after the injury, how would his reduced earning capacity compare with what he would have earned as a carpenter?

Those issues could not responsibly be left to guesswork.

We retained experts to provide a reasonable and supportable analysis of his future economic loss.

The insurance defense attorney’s job was to minimize those losses. Our job was to present the complete and realistic picture to the judge or jury.

What is a life care plan?

A person with a serious or catastrophic injury may require medical treatment and personal assistance for decades.

A life care planner evaluates the client’s condition and anticipated future needs and creates a detailed plan identifying the care, services, equipment, and assistance the person is expected to require.

Depending on the injury, a life care plan may include:

A life care planner and an economist perform related but different functions.

The life care planner identifies and prices the anticipated care. An economist may then evaluate how those expenses should be calculated over the client’s lifetime, considering factors such as inflation, cost-of-living adjustments, timing, and present value.

The purpose is not simply to place a large number in a demand letter or in front of a jury. The purpose is to show where the number comes from and why it represents a legitimate future need.

Day-in-the-life videos show what medical records cannot

A medical record might state that a client has difficulty getting out of bed, climbing stairs, bathing, or using the bathroom.

That is very different from seeing what those difficulties actually look like.

A day-in-the-life video is demonstrative evidence that can help an insurance adjuster, mediator, judge, or jury understand what the medical and economic testimony means in the client’s actual life.

I handled a case involving a woman who suffered a severe ankle injury. The available insurance coverage was limited, which meant that we did not have an unlimited litigation budget.

Her most significant difficulties occurred before most people would consider their day to have started.

Getting out of bed was difficult. Reaching the bathroom was difficult. Navigating the stairs was difficult.

Once she reached the first floor of her home, she could move around more effectively. But reaching that point required tremendous effort. At times, she had to move on her knees to navigate portions of her home.

Rather than merely asking her to describe those limitations, I had a law clerk record portions of her morning routine.

We showed what getting out of bed actually required. We showed how she navigated the stairs. We showed the difficulty involved in something as basic and private as reaching the bathroom.

There was no need for dramatic music or exaggeration. We simply showed the jury what her life looked like.

The jury ultimately returned a verdict that exceeded the available insurance policy limits.

Each case is different, and past results are no assurance that an attorney will be successful in any future case.

In a case with greater available coverage, we would ordinarily consider retaining a professional production team to prepare a full day-in-the-life video. But the principle is the same.

We often say that a picture is worth a thousand words. A video can communicate exponentially more.

How day-in-the-life evidence works with expert testimony

A life care planner may testify that a client will require several hours of attendant care each day.

An economist can calculate the lifetime cost of that care.

A physician can explain why the assistance is medically necessary.

The day-in-the-life video can show what that assistance actually involves.

Each type of evidence performs a different function:

Together, that evidence allows the jury to see more than a diagnosis or a dollar figure.

Why I encourage injured clients to keep a journal

Personal injury litigation can take time. A case may not reach a deposition or courtroom until three or four years after the accident.

By then, a client may have forgotten many of the details of the first several weeks or months following the injury.

The client may remember that the experience was difficult but forget that it took 20 minutes to get dressed, that a spouse had to help with bathing, or that the client slept downstairs because climbing the steps was impossible.

A contemporaneous journal can help preserve those details.

Clients may find it helpful to document:

The journal should be factual and free from exaggeration. Clients should also assume that anything they write may eventually be examined during litigation and should follow their attorney’s instructions about maintaining it.

The purpose is not to create evidence. The purpose is to preserve the truth while the details are still fresh.

Who pays for the experts?

Expert witnesses can be expensive.

Physicians, engineers, economists, vocational experts, life care planners, forensic specialists, videographers, court reporters, and other professionals may charge substantial fees to review evidence, prepare opinions, give depositions, and testify at trial.

A serious personal injury case can require tens of thousands of dollars in litigation expenses. A catastrophic-injury case can cost substantially more.

Most injured clients could not realistically fund that litigation themselves. They may already be unable to work and may be facing medical bills and financial pressure.

Depending on the written representation agreement, a personal injury law firm may advance reasonable litigation expenses while the case is pending.

If the case produces a recovery, those expenses are generally reimbursed from the recovery in accordance with the fee agreement, whether the recovery comes through a settlement or amounts collected following a judgment.

The agreement should explain how expenses are handled, when they are deducted, and whether the client may remain responsible for any expenses if the case does not produce a recovery.

Case expenses are separate from the attorney’s contingent fee.

Good lawyers spend money strategically

Hiring experts does not mean spending money unnecessarily.

Not every case requires an economist, engineer, life care planner, or professional video production team. In some cases, the treating physician and existing records may provide everything that is needed.

In another case, failing to hire the right expert may make it impossible to prove an important part of the claim.

The attorney must evaluate:

The lawyer’s responsibility is to determine where money actually needs to be spent and how to develop the strongest credible evidence within the realities of the case.

Prepare the case as though it will be tried

There is a fundamental difference between processing an insurance claim and litigating a personal injury case.

A lawyer who approaches every case in a pro forma manner—collect the records, total the bills, send a demand, and wait for an offer—may never develop the evidence necessary to establish the client’s full damages.

I believe significant personal injury cases should be prepared from the beginning with the assumption that they may ultimately be presented to a judge or jury.

That does not mean every case should go to trial. Most cases resolve without a jury verdict.

But there is an important difference between wanting to settle a case and needing to settle it because the case has not been properly prepared for trial.

Insurance companies and their attorneys recognize that difference.

When the evidence has been developed correctly, the defense knows that if negotiations fail, the attorney is prepared to present the medical testimony, causation evidence, economic losses, future care needs, demonstrative exhibits, and the client’s story to a jury.

That preparation can affect settlement negotiations long before anyone enters a courtroom.

Experts are not hired to make a case appear larger than it is. They are hired when necessary to prove what actually happened and what an injury has truly cost the client.

In a serious personal injury case, saying that someone suffered a loss is not enough.

We must be prepared to prove it.

Mandeep S. Chhabra, Maryland trial attorney, Annapolis
About the Author

Mandeep S. Chhabra

Managing Member · Cochran & Chhabra Law Group · Annapolis, MD

Mandeep S. Chhabra is the managing member of Cochran & Chhabra Law Group and has practiced law in Maryland since 2000. His practice includes plaintiff’s personal injury litigation. He prepares significant cases with the expectation that they may ultimately be presented to a judge or jury.

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Speak with a Maryland personal injury attorney

If you or a family member has suffered a serious injury, the evidence needed to prove the case should be considered early. Cochran & Chhabra Law Group represents injured clients throughout Maryland and prepares significant personal injury cases with the expectation that they may ultimately need to be presented to a judge or jury.

You can read more about how we handle Maryland personal injury claims, or see our breakdown of filing deadlines and damages caps in Annapolis injury cases.