On the other hand, if the single recovery rule were discarded, final disposition of cases could be delayed for years, and the courts would have to assume the added burden of supervision of their awards. In ordinary cases involving private parties there are practical considerations of insurance policy limits and the ability of defendants to pay. Frequently, cases are settled or disposed of for less than they are worth because of these. In Federal Tort Claims Act actions the ability of the Government to pay is never in question. An amendment to the Federal Tort Claims Act to provide for periodic payments when future, long range damages are significant seems desirable. If such an amendment were passed, the Government would pay more in some cases and less in others, than it would under a single recovery. In all cases justice through just compensation, no more -- no less, would be achieved. Such drastic changes must come from the Congress, however, and not from the courts. The Government's suggestion is rejected.
What is the life expectancy of Marilyn after her injury? Plaintiff introduced medical testimony that Marilyn's essential organs are not impaired and that she could live out her normal life span in her injured state. This testimony did not take into account other pertinent factors. Plaintiff's medical witnesses had not studied mortality statistics on brain-injured persons. A Government witness, Dr. Walker, a neurosurgeon who had conducted studies on the life expectancies on brain-injured individuals, testified that Marilyn's head injuries would reduce her life expectancy between 6 to 10 years. He said there were other factors which would further affect her life expectancy, particularly that she had a catheter in place for a long period of time which "leads to an infection of the bladder and this may involve the kidneys, so that this may flare up at any time and certainly is much more likely to cause a nephritis than a person who does not have the infection." Dr. Onifer, who treated Marilyn during her stay at All Saints' Hospital, recognized this possibility.
Dr. Walker also testified that: as a person with brain damage gets on in years, the cerebral circulation decreases and more serious brain involvement and death result; this can also lead more readily to circulatory troubles of other kinds, and adversely affect vital organs such as the heart and kidneys; brain damaged persons can die from a convulsion or seizure through suffocation, or from falling during the seizure; this can happen even though the person is on anti-convulsive drugs; obesity in brain damaged persons cannot be controlled and results in a shortening of the life span;
and Marilyn's violent outbursts toward others might reduce her life expectancy because of violent retaliation, or injuries suffered in an attempt to restrain her.
There is other evidence which indicates that Marilyn will encounter dangers to which the average person is not exposed, which probably will affect her life expectancy. Her physical condition aside from convulsive seizures, causes her to fall frequently.
Dr. Erdman, one of plaintiff's physicians, testified that her physical condition would not result in a shortening of her life expectancy if she is given adequate protection.
There are many factors which could shorten her life expectancy. Marilyn's life expectancy is 30 years.
Dr. Wilson testified that the cost to maintain Marilyn at Fairmount Farm would be $75.00 a day. The Government argues that Dr. Wilson's opinion is entitled to little or no weight because his brief examination
of Marilyn was not for the purpose of admitting her to Fairmount Farm, but was for the sole purpose of testifying to a measure of damage. It is clear that his examination was for the purpose of admission. The Government did not introduce evidence of institutional costs but was content to rely on cross-examination. Dr. Wilson's testimony provides an adequate basis on which to make an award for private institutional care.
Dr. Wilson testified his $75.00
a day estimate consisted of room, board and general nursing care -- $48.00; psychiatric care -- $10.00; private attendant -- $12.00; drugs -- $2.00; miscellaneous expense -- $3.00. He called the room, board and nursing care a per diem charge that would be found in most hospitals. The Government argues that courts in other jurisdictions deny recovery for the subsistence portion of room and board unless it is shown to exceed the amount which ordinarily would have been expended for subsistence in the absence of the injury, citing Mintz v. Atlantic Coast Line R. Co., 1951, 233 N.C. 607, 65 S.E. 2d 120. In Mintz plaintiff was allowed to testify that since her injury, she was supported by her father and her brothers and sisters. The Supreme Court of North Carolina in awarding a new trial held that this testimony was incompetent on the issue of damages. The court cited authorities for the proposition that a person is obligated to pay for his own board and keep, and that the obligation is not removed by the negligence of another; and that if the injury renders him unable to earn his board and keep, he recovers compensation for loss of time which is the equivalent of wages and he is made whole. The court went on to state, however, that a tort-feasor is liable for any expenses which are in excess of plaintiff's personal livelihood or normal support, such as expenses for "hospital treatment, convalescent care, or recuperative attention." In the ordinary case when a person is hospitalized for a period of time, no deduction is made for living expenses. Marilyn probably would have married and the award for loss of future earning capacity was much less than it would have been if she were to remain unmarried, and enter and remain in the labor market during her work life expectancy. Also, during marriage, including any period during which she reentered the labor market, her husband would owe her a duty of support. There is no Pennsylvania authority for the proposition advanced by the Government, and if adopted by Pennsylvania, it would not be applicable to the facts of this case. A deduction from the hospital charge for ordinary subsistence will not be made.
The Government attacks the $10.00 a day estimate for psychiatric care because the room and board charge "undoubtedly includes within it a margin of profit for the private institution which is owned by Dr. Wilson." Even if this were so, the profit would represent a return on his investment and the services rendered by the hospital; it would not include payment for his services as a doctor at the hospital. There is no evidence that the room and board costs include psychiatric care. The Government argues further that Dr. Erdman and the other physicians testified that constant psychiatric care would not benefit Marilyn. Dr. Erdman said that she would not be in constant need of psychiatric care insofar as the response to the injury of the brain itself is concerned, but added that some psychiatric care was needed.
The other medical testimony was to the same effect, i.e., that psychiatric care was necessary for her emotional problems. The record is replete with instances of her frequent emotional outbursts. The Government points out that Marilyn did not have psychiatric care during the thirteen months she was at home prior to the trial. Dr. Elfman, a clinical psychologist, testified that she worked with Marilyn at Manchester House and for a short time after she was discharged. She also saw her on March 19, 26, 31 and April 4, 1969. She recommended that Marilyn be institutionalized because psychotherapy administered to Marilyn at home was not successful. She told her parents she would not treat her for that reason.
Dr. Chianese, a neuropsychiatrist at the Rehabilitation Center, Johnstown, also testified that psychotherapy should be in an institutional setting where through the use of "patterning techniquest," her outbursts could be controlled.
The Government points out that at Johnstown Marilyn was seen by a psychiatrist for environmental control for only thirty minutes. This is the time Dr. Chianese spent with her on ten or twelve visits primarily to determine if she could benefit from the program at Johnstown which is a vocational rehabilitation institution and not a custodial or treatment institution. She was discharged because she could not benefit from the treatment. Dr. Chianese could not provide psychiatric care to each patient because he was the only staff psychiatrist for 160 patients who needed psychiatric care. Dr. Chianese's testimony and the great weight of the other medical testimony was that Marilyn needed institutionalization which would include psychiatric care for her emotional problems. It is clear that psychiatric care for Marilyn is necessary and that it must be provided in an institution. Marilyn will require psychiatric care at a cost of $10.00 per day.
The Government argues that the estimate of $12.00 a day for a private attendant conflicts with the history of the case and Dr. Erdman's opinion concerning the future. It argues that Marilyn has not had any private attendant during the time she has been at home, that she has remained alone at home for long periods, and that the only attendant she would need, with the possible exception of a physical therapist, is someone to assist her in dressing and bathing which should come within the duties of the regular nursing staff. Dr. Wilson testified that the charge for a private attendant was based on attendance by a licensed practical nurse for four hours a day, two hours in the morning and two in the evening, at $3.00 an hour, the current rate for practical nurses; that this attendance would have to come from overtime work by those coming off shifts because it would be impossible to get a private duty nurse to come in only two hours in the morning and evening; and that the nurse would bathe and dress Marilyn, take her out for fresh air, supervise certain activities in which she could participate with other patients, and generally provide the extra care which she needs. Dr. Erdman testified that assuming that Marilyn could be handled by the regular staff, she would need therapy for walking which would cost $10.00 a day in addition to room and board. While she has remained at home without professional attendants, her parents have been performing these services. They will not be able to continue. Dr. Chianese said that one nurse could not control Marilyn in her psychotic rages. In any case, she needs institutionalization for her emotional problems, and, therefore, will require someone to provide the services which have been provided in the past by her family.
The Government argues that the estimate of $2.00 a day for drugs is based on the erroneous assumption that Marilyn has been maintained at home on tranquilizers, whereas the only drugs she has used at home are anti-convulsants; that if she adjusts to institutional care, she would still need only anti-convulsants; and that if she did not adjust, then the cost could reach or exceed $2.00 a day but the use of these drugs would shorten her life span. Dr. Wilson testified that anti-convulsant drugs would cost a little less than $2.00 a day. His estimate was based on the average cost of drugs administered to a number of patients. There is adequate support for the estimate of drug costs.
Finally, the Government argues that the $3.00 miscellaneous cost is pure speculation. Dr. Wilson testified that the charge represented "two or three dollars for miscellaneous expense which would be difficult to estimate exactly what they might be right now such as materials for working and occupational therapy and other things like that." There is no evidence that this charge is not proper. It will be accepted.
The daily institutional cost to maintain Marilyn will be $75.00 a day. In addition to Dr. Erdman's testimony that this cost is in line with current charges, there is other supporting evidence. Dr. Chianese testified that institutions like Johnstown, a State hospital, are less expensive than private institutions, yet Marilyn's charges there averaged about $40.00 a day. Dr. Wilson maintains several other patients at Fairmount Farm who pay $75.00 a day. Under Pennsylvania law, the plaintiff is required to furnish only a reasonable quantity of information from which the fact finder may fairly estimate the amount of damages. Blackburn v. Aetna Freight Lines, Inc., 3 Cir. 1966, 368 F.2d 345. The charge for private institutionalization is amply supported by the evidence. It does not fall into the realm of speculation or conjecture. Ashcraft v. C.G. Hussey & Co., 1948, 359 Pa. 129, 58 A. 2d 170.
Plaintiff presented evidence that institutionalization costs have been increasing, and that the cost of mental institutional care in the Philadelphia area has increased about 5 1/4 percent each year over the past ten years. Thus, plaintiff's original request for damages of $1,497,412.50 ($75.00 a day x 365 days = $27,375.00 per year x life expectancy of 54.7 years = $1,497,412.50) becomes $8,046,071.00 with the application of a factor for future cost increases. Inflationary considerations have most commonly been used in the justification of awards.
In many instances the consideration has been an evaluation of an award considering present inflationary trends as compared to awards in the past as in Armentrout v. Virginian Ry. Co., S.D.W. Va. 1947, 72 F. Supp. 997, 1001:
"* * * It may be argued that ordinary fluctuations in the purchasing power of money may not properly be considered by a jury in awarding damages. Perhaps not, as to the future; but the jury have the right, and it is their duty, to be realistic. They need not close their eyes to the economic facts of life. It is possible, of course, that values may cease to be affected by inflation of the currency. Economic conditions may conceivably cause the value of the dollar again to rise to the point where it stood before the World War II. On the other hand, there is no assurance that its value may not become less as time goes on. This possibility balances, if it does not outweigh, the contrary forecast. It would be, I think, mere speculation to adopt either theory as the foundation of an estimate of future earnings. Yet some reasonable and logical basis for such an estimate must be found; and, in my opinion, it can be found only by an appraisal of present economic facts, of which the jury are presumed to have knowledge. No one can say now whether a verdict of $160,000 rendered today may be equivalent to one of $300,000 or to one of $80,000 rendered five years hence. We can be guided only by the conditions of the present; and under those conditions, we learn from economic statistics that $160,000 now represents a value of approximately $100,000 in 1939. * * *"
And in McWeeney v. New York, N.H. & H.R.R. Co., 2 Cir. 1960, 282 F.2d 34:
"* * * Though some courts have sanctioned instructions permitting the jury to take into account inflation between the injury and the trial, there is little or no authority in favor of charging the jury to take future inflation into account, see 2 Harper and James, The Law of Torts, § 25.11 (1956). * * *"