Delay Damages Apply to Future Medical Expense Awards

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Medical Costs

However, both plaintiffs and defense lawyers said that while the defense posed a novel argument, the court's ruling is not necessarily a break from the norm.

In an eight-page opinion in Roth v. Ross, a three-judge panel unanimously reversed a ruling by Luzerne County Court of Common Pleas Judge Lisa M. Gelb denying plaintiff Eileen Roth's request for delay damages on a $20,000 award for future medical expenses.

Judge Christine L. Donohue, writing for the court, said Gelb improperly focused her decision not to apply delay damages on her determination that future medical expenses do not constitute "bodily injury."

Donohue said the proper inquiry was whether future medical expenses constitute "monetary relief for bodily injury." She found that they do.

"Future medical expenses that will be incurred as a result of treatment of injuries sustained because of the defendant's negligence are, by definition, monetary relief for bodily injury," Donohue said. "The trial court's denial of Roth's request for delay damages on the $20,000 allocated for future medical expenses on this basis was therefore error."

Donohue was joined by Judge Paula Francisco Ott and Senior Judge William H. Platt.

But Alan M. Feldman, of Philadelphia personal injury firm Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig, who was not involved in the case, said he had always thought delay damages could be added to awards for future medical expenses.

"I've collected delay damages on future medicals in every case I've ever collected delay damages on," Feldman said, adding, "I think the decision basically just confirms what we all understood the law to be."

It wasn't only plaintiffs attorneys who said most lawyers have always operated under the assumption that delay damages can be applied to future medical expenses.

Thomas A. McDonnell, an insurance defense attorney with Summers, McDonnell, Hudock & Guthrie in Pittsburgh who also was not involved in Roth, said he's never before heard of a defense attorney making the argument that delay damages should not be applied to future medical expenses, but he noted that appellate case law has previously held that delay damages cannot be added to awards for past medical expenses.

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