new ideas
April 2000

How often have we seen damage reports refer to "average" or "normal" life expectancies? Certainly we know that some individuals clearly would not reflect average mortality expectations, however, I suspect very few lawyers, economists or actuaries have explicitly addressed this matter. Perhaps as many as 5% of all cases that cross my desk have elements of sub-standard mortality. This is especially true among medical malpractice claims in which we are often dealing with an impaired individual.

Consider the economic loss associated with a white female suffering from End Stage Renal Disease (ESRD) at the time of her death at age 30. Consider further the fact that this woman already had one failed kidney transplant and, while awaiting a suitable donor, was currently being treated by dialysis (3x per week). Consider further the fact that the woman's underlying disease, hemolytic uremic syndrome, has a known high risk of reoccurrence following transplantation while long-term dialysis appears to be correlated with the acceleration of arteriosclerosis and a noted increase in death from chronic heart disease.

While the normal life expectancy of a 30-year-old white female exceeds 50 years, I suspect no one would suggest that this particular woman held this outlook for survival. Our analysis suggested a 20% probability that this woman would have reached her 50th birthday and had an impaired life expectancy of slightly more than 12 years. Work life expectancy was similarly compromised and confounded by limited employment options that would have to be sympathetic to her ongoing medical needs.

Who benefits from an analysis such as the one just presented? I believe that both the plaintiff and the defense will benefit, but for different reasons. The benefits to the defense are obvious while those for the plaintiff are a little less so. Being well prepared in court is absolutely essential. The credibility of an economic analysis that would ignore the existence of data that affects the results would be strained if not destroyed upon cross-examination. The expert who is able to respond that pre-existing health factors had already been taken into consideration would, I believe, be viewed in a positive light. By presenting the matter during his direct testimony for the plaintiff, I would foresee very little additional inquiry by the defense. If, at trial, the defense enters testimony that would support a sub-standard stance, it will be too late for the plaintiff's counsel to mount an effective counter. A carefully crafted analysis covering all aspects of the case should help achieve an equitable solution for all parties.

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