Strategies, Challenges, and Answers

Damages For Future Medical Care Based On Subjective Injuries Requires Expert Support

John Lanza was hurt in a motor vehicle accident.  He settled with the underlying tortfeasor and brought suit against his UIM carrier Progressive Direct.  

One issue was whether he would be allowed to claim future damages based upon headaches, neck pain and back pain.  He wanted to recover for the future care he received.  He said that he would have future pain and suffering.  He also claimed that he would lose income based upon time lost at work while seeking that future care.  

When discovery closed, Lanza had not identified a retained expert that would opine that he would need future care for his symptoms. He said however that he anticipated that his non-retained treating physicians would provide such opinions.  Discovery was extended to allow depositions of the non-retained treating physicians.  

Discovery closed again.  Even though Lanza had not identified any specific expert opinion evidence to support his position, he still asserted that he anticipated his treating doctors would back him up on his claims for future medical damages, future pain and suffering and the associated lost wages.  

The Court considered the issue of whether Lanza could support his claim for future damages in the case of Hendrix v. Progressive Direct Ins. Co., 2023 U.S. Dist. LEXIS 49312.  

The Court recognized the distinction made by Nevada law when it comes to future medical damages.  If an injury is objective, the Plaintiff can present evidence regarding future care without the support of a medical expert.  Paul v. Imperial Palace, 111 Nev. 1544, 1548, 908 P.2d 226, 229 (1995).  However, where the injuries are only subjective, a Plaintiff must have the support of a medical expert before he can present evidence of future damages.  Gutierrez v. Sutton Vending Serv., 80 Nev. 562, 566, 397 P.2d 3, 4 (1964).  

The Court found that the Plaintiff’s claims of headache, neck pain and back pain were subjective.  Since Lanza presented no evidence from a medical expert, Plaintiff was prevented from presenting evidence of future medical care, future pain and suffering and future loss of income.  

If you have questions about future damages, please contact Mike Mills at 702.240.6060×114 or email him at  

About Michael Mills

Mr. Mills practices in the area of civil litigation and appeals, with particular experience in matters involving trucking liability, insurance defense, insurance coverage, premises liability, products liability and defense of personal injury. Mr. Mills is a member of the Trucking Insurance Defense Association, the Defense Research Institute Trucking Committee and the Nevada Motor Transport Association. Mr. Mills is licensed to practice before the Nevada Supreme Court and the Utah Supreme Court. He is also licensed to appear before the United States Supreme Court, the U.S. District Courts for the Districts of Nevada and Utah, as well as the U.S. Court of Appeals for the Ninth Circuit. Mr. Mills has created 3 Blogs for the benefit of the insurance industry. He serves as editor and publisher of the Nevada Insurance Law Blog, the Nevada Coverage and Bad Faith Blog and the Nevada Trucking Law Blog.

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