It seems sensible to conclude that an elderly injury causes greater harm than an injury earlier in life. Older people, for example, “are more likely to break bones in falls because many older people have porous, fragile bones.”1. “[F]atal crash rates increase starting at age 75 and increase notably after age 80. This is largely due to increased susceptibility to injury and medical complications among older drivers rather than an increased tendency to get into crashes.”2. Severe but nonfatal collision injuries are also more likely in older people. “[O]lder [vehicle] occupants are more prone to injury, have higher severity injuries, and have poorer healing responses than is observed in younger persons.”3.
Despite such a seemingly obvious conclusion, however, elderly personal injury victims face unique challenges in obtaining fair compensation for injuries caused by negligence. Plaintiff’s attorneys sometimes decline to take their cases, dismissing them as ‘small cases’ because of the difficulty of distinguishing pre-existing medical conditions, lack of or reduced earning capacity, and short life expectancy.”4. Lawyers who “question the extent of damages in cases involving elderly plaintiffs [may] suggest that these cases might not be worth pursuing.”5.
The special challenges of the elderly injury case don’t go away once an elder retains a lawyer. “The consequences of older people’s injuries are often discounted by doctors, insurance adjusters, and defense counsel.”6. Many insurance carriers, for example, “immediately take the position that elderly plaintiffs deserve lower settlements than younger plaintiffs.”7. It’s typically an unsupportable position that rests largely on prejudices. Unfortunately, it’s pervasive—and it’s often proven persuasive. “[C]onventional wisdom [is] that it’s difficult to obtain high injury awards for the elderly.”8. One injury lawyer has stated more bluntly that “[d]efense lawyers usually believe that senior cases are worth garbage, and they are very crass about it saying, ‘Hey, this person is 65 and is going to die anyway …”9.
Not all of the challenges are rooted in unhelpful attitudes. An elder’s economic damages, for example, will likely be less than a younger person’s because the cost of future medical care and lost wages will likely be less. But noneconomic damages—the intangible losses that come with injury and that age compounds—must overcome such attitudes if fair compensation is to be obtained.
Demonstrative evidence can help a jury visualize what an elderly person has to endure because of someone else’s negligence. Testimony from damages witnesses like a spouse, children, and neighbors can describe the day-to-day effects of the injury. Even more important than effective trial tactics, however, may be understanding and empathizing with an older person who has become a plaintiff. The lawyer’s ability to walk in shoes that have taken many steps is critical to his or her ability to lead the jury along the same path.
1. Laurence Z. Rubenstein, MD, Falls in the Elderly, Merck Home Health Handbook (2014).
2. CDC, Older Adult Drivers: Get the Facts.
3. Lawrence S. Nordhoff, Jr., Motor Vehicle Collision Injuries: Biomechanics, Diagnosis, and Management 534.
4. John A. Day, Elderly Personal Injury Victims: Proving Intangible Damages, 24 Trial 28, 28 (1988).
5. Id. at 31.
6. Jules B. Olsman, Proving Damages for Elderly Plaintiffs, 27 Trial 35, 35 (1991).
7. Elsworth T. Rundlett III, Maximizing Damages in Small Personal Injury Cases 4-14.
8. Gera-Lind Koralek, Case Proves Senior Verdicts Can Be Large, 80 ABA J. 28 (1994).
9. Id. (quoting attorney Robert A. Clifford).