28 Trial Lawyer • Winter 2023 By Cameron Carter OTLA Guardian Vivian was 92-years-old at the time of her fall near the entry area of a large mall store in Vancouver. The fall was not her fault. She suffered a true compound fracture of her left femur, and required extensive surgery and rehabilitation. I came to know Vivian and the challenges of representing an elderly person as I worked with OTLAGuardian Tom Melville to prepare the case for trial. The graying of America In 2020, 16.9% of the U.S. population was over 65 years old. That figure is expected to reach 22% by 2050. If you practice injury law, you will have somebody over 65 seek your help. There are certain features that almost all elder injury cases have: (1) clients over 65 are often retired, so there is no loss of earnings or impaired earning capacity claims; (2) life expectancy is shorter, so future care needs are limited; (3) the injuries are often more severe than would be expected in a younger person; (4) recovery and healing take longer, and complications and incomplete recovery are more prevalent; and (5) Medicare (or Medicaid) is probably involved, so timely reporting of the claim and accounting for Medicare reimbursement and future care needs must be considered. The fact that many or all medical bills were paid by Medicare may also factor into how the adjuster values the claim. Embrace pre-injury vulnerabilities Many injury lawyers may be hesitant to represent a person of advanced age for a f a l l injur y. Tha t he s i t ancy i s understandable — there is a powerful bias against the elderly prevalent in western culture. We assume that, like the sun rising in the east, old people fall. But like any pre-injury vulnerability, a client’s advanced age can be a powerful tool to use against the defendant. It is important to have a complete understanding of a client’s pre-injury health status. There are many age-related changes to the body and mind, and the effects can be cumulative. Vivian’s medical records indicated she had significant osteoporosis. This is exCameron Carter actly the pre-injury condition you would expect in a 92-year-old woman. The osteoporosis explained the severity of the initial injury and the complications Vivian suffered during her recovery. More importantly for us, we had an easily understandable pre-injury condition that warranted a favorable “prior infirm condition” jury instruction. The importance of the UCJI 70.06 jury instruction (or in Vivian’s case, the Washington equivalent) cannot be overstated. Defendants do not get a discount on justice because our clients lived a long life. This theme should inform pre-trial discovery, voir dire and your evidentiary presentation. Understand the aging process There is a robust body of studies documenting common age-related declines. Age-related declines can be broadly separated into two categories: perception and reaction. A big tension point for us was the fact Vivian could not articulate why she fell. She was walking toward the store exit, and the next instant she was on the ground with her left leg facing the wrong way. Fortunately, Vivian had the presence of mind to take a picture of the store employee attempting to straighten the floor mat Vivian was laying next to. In analyzing the photos, we could tell the floor mat was either riffled or overlapping onto an adjoining floor mat because Prosecuting a Fall
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