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Future medical care awards are part and parcel to a medical malpractice or personal-injury case. There exist, however, traps that threaten these specific claims; thus, it is imperative that practitioners fully understand the intricate maze of these traps and correctly interpret the details of their client’s future medical care. The road for the unwary is paved with many different hazards that may undermine the preservation of an otherwise valid future medical care claim. Likewise, a correct understanding of the standards concerning future medical care and a defendant’s attempts to offset a future medical award, as well as a defendant’s attempts to circumvent a meritorious future health care claim, will enable practitioners to avoid these pitfalls. A different standard is required to prove future medical care as opposed to past medical care. Future medical care is based on the “reasonable probability” standard, which is less exact than “reasonable and necessary.” Plaintiffs’ attorneys must establish that in all reasonable probability, first, future medical care will be required; and second, that the costs are reasonable. Significantly, no expert testimony is required. Instead, juries are encouraged to factor in: 1) the nature of the injuries; 2) the medical care rendered before trial; and 3) the condition of the injured party at the time of trial. And, to confuse the process, our courts have told us “guess work” is allowed, but not “speculation.” Significantly, Texas courts have applied the collateral source rule since 1883. Therefore, Texas has long accepted the theory that a wrongdoer should not benefit from such collateral sources as medical insurance, workers’ compensation, life insurance, disability insurance or free state-sponsored programs such as physical therapy, which are independently obtained by the injured party and to which the tortfeasor was not privy. Therefore, the primary purpose of the collateral source rule in Texas is not to create a windfall for the plaintiff. Rather, the collateral source rule must stand because it recognizes the plaintiff’s right to receive benefits, which are completely independent of the tort cause of action. The collateral sources represent benefits that the plaintiff has earned either directly or indirectly and should not diminish the defendant’s ultimate liability. For example, in a typical case, with or without the collateral source rule, the plaintiff who is awarded judgment is made whole; the only issue is whether the defendant or the plaintiff’s insurer bears the financial burden. Therein, the collateral source rule protects the plaintiff who, without the rule, might be left less than whole because the defendant is entitled to offset for the insurance payments and the insurer is entitled to repayment from any judgment amount remaining after the defendant’s offset. Significantly, collateral sources are frequently offset by subrogation. Moreover, advocates opposed to the collateral source rule fail to recognize that a plaintiff’s refund from a collateral source does not take into account the other losses suffered by the plaintiff. For example, as a result of the tort injury, the plaintiff may be either uninsurable or be required to pay significantly higher premiums in the future. PARENTAL CLAIM RIGHTS Generally, the parents own a claim for medical care, up to age 18. Thereafter, the child owns it. One essential dilemma posed by this scenario is that a parent’s right to bring a claim expires after two years. Thus, if a parent is negligent and does not file a claim, the child’s right to pursue a claim is then barred by the statute of limitations. There is a solution. If the minor can show that the medical expenses incurred qualify as “legal liabilities” of the minor’s estate, the child can then pursue the claim. Many lien statutes frame the argument that today, a child’s medical care, up to age 18, is a “legal liability.” For example, � 55.002 of the Texas Property Code allows hospitals to attach a lien to a cause of action or claim of an individual who receives hospital services for injuries caused by an accident that is attributed to the negligence of another. This applies to minors and constitutes “legal liabilities” of the minor’s estate. Other lien statutes provide the same rationale. Of course, we must always keep a watchful eye on our Legislature that is under constant pressure by tort reformers to cap awards in the name of eliminating frivolous suits. Never mind that caps have no impact on frivolous cases. They instead punish only the most deserving plaintiffs in the system. The highest future medical care needs are for brain-damaged kids. These kids are the losers if caps are sold to the Legislature. The jury should decide awards, not special interest groups trying to shirk accountability. Future medical claims can be confusing and dangerous if the laws that govern them are not thoroughly understood and properly applied. Incorrect assumptions regarding the nature of a future medical claim can set the stage for misapplication of the law and subject a claim to a readied defense. Notably, however, by systematically approaching the facts of a case with appropriate analysis and application of the rules, notes and caveats discussed above, practitioners will correctly and successfully overcome threats to future medical care cases. The single most important factor is to correctly recognize a trap and understand how to circumvent it. Jack E. McGehee is a partner in McGehee & Pianelli of Houston. Joelle Grace Kenney is an associate with the firm.

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