Closed Head Injury In A Rollover
Dr. X was a belted passenger in a high-speed, roll-over, freeway accident. His multiple fractures of C-6 and C-7 and his closed head injury made it difficult for him to continue working as a physician. Since his insurance company could not effectively contest the cause of the rollover, or his medical condition, they tried to deny full coverage by arguing that at 56 he was near retirement anyway, didn’t need to work, and had previously announced an intent to retire even before the collision. Our task was to establish that without the accident he would have continued to work, and that with the accident his loss of earning capacity was the insurance carrier’s responsibility.
Dr. X had graduated from an Ivy League university, followed by medical school at a state university, then moved to a small town to join a family practice clinic, which eventually became the largest family practice group in the area. He worked hard and was well compensated.
When he attempted to return to work, three hours per day for three days per week, his own doctor noted that he was “having significant difficulty with multi-tasking.” His treating neurologist noted “difficulties with cognition that are interfering with his work activities.” His neuropsychologist noted that “Given this man’s cognitive and neurological conditions, it is likely that he will be unable to return to his pre-accident function as a physician. As leader of a medical team, he cannot afford to delay decision making in critical emergency situations. Yet his attentional problems, particularly when he becomes fatigued, may very well lead to increased errors and lapses in judgment. Given that he is a perfectionist, and given his sense of responsibility, the emotional burden of high level performance expectations will likely impact him, making it even more difficult for him to perform.” These treating physician’s conclusions were supported by the fact that his partners at the clinic that he founded, after allowing him to try working part time, asked him to retire.
The critical question then became: how long would he have continued to work as a physician, had the accident not occurred, i.e. what amount of income had he lost?
Brett Murphy attorney Dean Brett cited data from the Bureau of Labor Statistics indicating that 56-year old white males with l5 years or more of schooling have a work life expectancy of an additional ten years. The BLS data indicated that more highly educated individuals tend to have a longer work-life expectancy, however the BLS did not look at education beyond 15 years, even though doctors typically have over 20 years of schooling and a medical degree. Consequently we had to find more specific information on physician work-life expectancy. The best available data on physician retirement probabilities was in the article “The Effect of HMO Penetration on Physician Retirement” published in the December 2000 issue of Health Services Research. We asked a professor teaching Statistics and Research Methodology to pull out the data in that article to determine the likely remaining career expectancy of a physician such as Dr. X: age 56, male, board-certified, AMA member, practicing general family medicine, in a small community.
It turned out that Dr. X was in the exact category of physicians who tend to work longest before retiring:
- Males work longer than females;
- General practitioners work longer than surgeons;
- Caucasians work longer than minority members;
- AMA members work longer than non-AMA members;
- Board Certified physicians work longer than non-Board Certified physicians.
In short, the highly qualified, board-certified, AMA member, male general practice physicians working in small towns tend to work essentially forever — perhaps because this is a personally rewarding practice style. The professor of statistics estimated the remaining career expectancy of someone with these characteristics as approximately 17 years. (In contrast, female surgeons, who are not board certified, retire approximately five years earlier, on average.)
The data supported Dr. X’s stated intention that had the accident not occurred he would have worked at least an additional ten years prior to retirement.
The post-accident vocational assessment was performed by Stan Owings, M.A., past Administrator of Rehabilitation Services for the Washington State Department of Labor & Industries, where he supervised a staff of 110, past President of the Professional Rehabilitation Organization of Washington. His conclusion:
His inability to work effectively in regard to multi-tasking and in stimulus that exists in any work environment make employment in any job in a usual competitive employment setting questionable. . .The research completed identified no medically related employment areas that are reasonably available…
After extensive research, it was the opinion of Owings & Associates that Dr. X’s probable future earning capacity would be limited to $30,000 per year, a loss of $120,000 per year.
Based on his consistent earnings history, the Bureau of Labor Statistics work life estimates, the vocational assessment, Dr. X’s life-long, strong work ethic, and his stated intention, forensic economists estimated the economic loss occasioned by this disabling closed-head injury and multiple spinal fracture, high-speed rollover as $1,274,087.
In addition to the loss of future earning capacity, Dr. X lost the intangible rewards of practicing medicine. What does it mean for a man who has spent his entire life working to become a doctor to no longer be able to function as a doctor? What impact does that have on his self-esteem and self-worth? Here was a man who had delivered over 800 babies, but who could no longer work in an operating room.
Mediation was scheduled before Larry Levy of Washington Arbitration and Mediation Services, with an arbitration with John Cooper of the same organization should the mediation not lead to a settlement. Based on the expert testimony regarding likely future earnings, the claim settled for $1,750,000. Dr. X was represented by attorney Dean Brett of Brett Murphy.