(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)
It is also worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, or Sutter.
THE MINOR PLAINTIFF IS ENTITLED TO A “LOST YEARS” JURY INSTRUCTION
The California Supreme Court specifically allows for a lost years instruction:
Under the prevailing American rule, a tort victim suing for damages for permanent injuries is permitted to base his recovery on his prospective earnings for the balance of his life expectancy at the time of his injury undiminished by any shortening of that expectancy as a result of the injury. … Although, to our knowledge, the lost years issue has not been previously decided in California, recovery of such damages is consistent with the general rule permitting an award based on the loss of future earnings a plaintiff is likely to suffer because of inability to work for as long a period of time in the future as he could have done had not sustained the accident. (Emphasis in original and added.) (Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 153.)
Consequently, the minor plaintiff will be asking the court to issue an instruction on lost years damages. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
And in August 1999, the First District discussed the latest defense attack on the lost years damage award in Overly v. Ingalls Shipbuilding, Inc. (1999) 74 Cal.App.4th 164, 175. In Overly, Plaintiff sued for personal injury for exposure to asbestos – and Plaintiff claimed the loss of future economic benefits that [Plaintiff] would have earned during the period by which his life expectancy was shortened, i.e., ‘lost years’ damages, in the form of pension, social security and household services’ benefits. (Id. at p. 171.)
The First District rejected the defense attacks. The defense in Overly argued the “lost years” damages had not yet accrued. (Id.) The First District rejected the argument because the Supreme Court has decisively ruled on the issue and allowed the “lost years” damages:
Fein expressly recognized a right to recover damages for the loss of prospective earnings during the period of time by which the plaintiff’s life expectancy has been diminished.” (Fein, supra 30 Cal.3d at p. 153.) … Fein established the right to recover lost rears damages in a personal injury action. (Overly, supra, at p. 172-173.)
The right to recover lost years damages is settled – settled by the Supreme Court. (See Part 4 of 8.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.