For years, Plaintiffs seeking to recover future medical expenses have had to show a “reasonable probability” that medical expenses will be incurred in the future. See Sanmina-SCI Corp. v. Ogburn, 153 S.W.3d 639, 642 (Tex. App.—Dallas 2004, pet. denied). This included proving (1) that it is reasonable to expect that future medical care will be required and (2) the reasonable cost of that care. Id. However, the determination of the amount of future medical expenses (if found that they may reasonably be incurred), is within the jury’s sound discretion. Id. Because the future is very uncertain (especially when looking at possible medical expenses), appellate courts are “reluctant to disturb a jury’s award of these damages.” Id. at 643.
This came into play in a recent opinion from the Fifth District Court of Appeals. Griggs v. Cohen involved a two-vehicle traffic accident which resulted in the Plaintiff, Victor L. Cohen, suing Michael W. Griggs for negligence. Griggs v. Cohen, 2020 Tex. App. LEXIS 8249, at *1 (Tex. App.—Dallas 2020, no pet.). The two drivers collided while driving the same direction. Id. Griggs changed lanes as he was passing Cohen and collided with Cohen’s car. Id. Both drivers stopped and exchanged information, but no police were called and Cohen drove his own car home. Id. at *2. At trial, Cohen testified that he was not hurt at the time of the accident, but began to have pain about a week after. Id. He eventually saw a chiropractor for his pain and had a total of six visits, leaving the last one pain-free. Id.
The jury awarded Cohen $10,600 for future medical expenses. Id. Griggs appealed challenging the legal and factual sufficiency of evidence supporting the finding of future medical expenses. Id. The court of appeals overruled both issues and affirmed the judgment of the trial court. Id.
The appellate court split the analysis into two parts: looking at the (1) legal sufficiency and (2) factual sufficiency of the evidence supporting the finding of future medical expenses. See id. *4-8.
In looking at the legal sufficiency of the evidence, the court noted that the Plaintiff must show a reasonable probability that medical expenses will be incurred in the future in order to recover. Id. at *4-5. However, it noted that no particular evidence is required because future medical expenses are “always speculative to some degree.” Id. at *5. Specifically, the court noted that the jury may base an award on (1) the nature of the injuries, (2) the past medical treatment received, and (3) the condition the Plaintiff is in at trial. Id. Cohen testified that he still experienced some pain. The chiropractor’s report used at trial indicated that he would likely continue to experience pain that may have to be addressed in the future. Id. at *5-6. The court, looking at the totality of evidence, found that the jury could reasonably infer that the Plaintiff would probably suffer more pain in the future and seek additional medical treatment, even though Cohen testified that he did not have any current plans to do so. Id. at *7.
Then, the court turned to whether the evidence was factually sufficient to support a finding of future medical expenses. In reviewing the factual sufficiency, it noted the burden is on the appellant (Griggs) to show that there was overwhelming evidence that Cohen would not suffer any future medical expenses. Id. at *7-8. Because Cohen testified that he would seek additional medical treatment if the pain returned (and Griggs did not identify any evidence to show that Cohen would not suffer any future medical expenses), the court held that the jury’s finding was not clearly wrong and unjust. Id. at *8.
- The Plaintiff continues to have the burden of proof at trial to show that there is a reasonable probability that future medical expenses will be incurred.
- If a Plaintiff is awarded future medical expenses at trial, the appellant claiming factually insufficient supporting evidence has the burden to show that there was actually overwhelming evidence presented at trial that the Plaintiff would not suffer any future medical expenses.