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Ken Margolin
Ken Margolin
Contributor •

Injuries to Disabled People

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It may be tempting to think that the value of a serious injury case due to negligence, to a person already burdened with significant disabilities, has to be substantially discounted. Unfortunately, I’ve dealt with some insurance adjusters who take just such an attitude. They are seriously mistaken. Juries throughout the country, including my own state of Massachusetts, have recognized the value of life and quality of life possessed by a severely disabled person.

Naturally some elements of economic damages may be compromised, such as lost earning capacity. When it comes to damages for pain and suffering, most jurors understand the irony that the most severely disabled amongst us, have less cushion against disaster. If you look at their damages not only in terms of what was taken from them, but in terms of what they have left, it is easy to imagine a jury enhancing rather than minimizing their injuries. A Florida jury awarded $8 million to a mentally retarded woman raped in a group home. An article by the Center for Public Representation, a non-profit organization that handles disabilities rights cases, summarizes numerous significant awards resulting from personal injury to disabled people. In the late 1990s, M.I.T. and Quaker Oats settled a shocking case stemming from radiation experiments conducted on mentally retarded individuals in the 1940s and 1950s. Notwithstanding the passage of time and difficulty of proving damages, the $1.85 million settlement on behalf of 100 disabled plaintiffs seems relatively modest.

Early in my career, I had a disabilities rights practice. I saw first hand, the dignity and nobility of many individuals with severe mental retardation, cerebral palsy, and other disabling conditions. To properly convey the loss to a person with serious disabilities, caused by a significant personal injury, it is important to employ a physiatrist or other appropriate expert who understands the client’s disability. Day-in-the-Life videos can play a major part, accompanied by before and after testimony from family members or caregivers. Serious consideration should be given to bringing the individual into the courtroom, even if briefly, so the jury sees the real person behind the trial story. A jury may have to be the best education for an adjuster who lowballs the value of injuries to a disabled person.