A recent case illustrates how routine, precautionary medical decisions can be reframed by a creative plaintiff’s counsel as evidence of catastrophic “future risk” to form the foundation for multimillion-dollar damages claims.
This particular $24 million nursing claim was built almost entirely on the fact that an injured child had been prescribed rescue medication for seizures. This was despite the fact that the child had never suffered a seizure outside the acute injury period and had never used the medication; his neurologic condition was stable and his seizures were controlled. Nevertheless, plaintiffs used the mere existence of the prescription to justify a claim that the child required round-the-clock nursing care for life.
This reasoning fundamentally misunderstands the purpose of rescue medications. Rescue medications for seizures, asthma, allergies, and the like, exist because medicine can prepare for possibility, not because it predicts probability. If the mere presence of a rescue medication established medical probability, then millions of people across the country would require continuous nursing supervision. They do not.
In defending these cases, our strategy is to move early and clearly to establish this boundary. We argue that, without competent medical testimony establishing that a future event is reasonably likely to occur, the mere presence of a prescription or emergency plan cannot serve as the foundation for claims of ongoing medical necessity or future care costs. Daubert or other motions practice is often necessary to secure our position. We litigate aggressively on behalf of our clients to ensure that courts and juries recognize the distinction between precaution and prediction.
At Waranch and Brown, we are committed to ensuring that sound clinical judgment is not distorted into a speculative basis for liability. Contact us at any time for guidance.