The economist in a medical malpractice case measures the earnings, benefits, household services, and care costs the injury added to the outcome the patient would have had with proper care, and the right time to retain one is the point at which the medical opinions that define that outcome exist in some form: after the causation and prognosis opinions are available, and before the expert disclosure deadline leaves no room to build the schedules on them. Retained earlier, the economist works from assumptions the physicians have not yet made; retained later, the report is compressed into the disclosure window and revised as the medical opinions settle. This guide explains what the economist needs from the medical record before the work can begin, how the claim differs from an ordinary injury or death claim, what changes when the patient has died, what the defense retains an economist to do, and how the engagement proceeds from retention to report.
A medical malpractice economic claim is a personal injury or wrongful death analysis with one added layer. The loss is not measured against perfect health; it is measured against the outcome the patient would have had if the care had met the standard. A patient who came to treatment with a condition that would have limited work on its own, or shortened life on its own, had an expected path before the negligence, and the economist's task is to measure what the injury added to that path, not what it took from a healthy person. The medical malpractice case type page sets out the components: lost earnings and earning capacity, lost fringe benefits, the replacement cost of household services, the present value of the incremental future care, and, where the patient has died, the survivor and estate components of a wrongful death analysis.
Every one of those components is a difference between two paths, and the economist does not define either path. The physicians do. The but-for path comes from the causation opinions, which say what the condition would have done with proper treatment; the injured path comes from the prognosis opinions, which say what the patient can now do and for how long. The economist builds the earnings, benefit, household, and care streams along each path and subtracts, which is why the question of when to retain the economist is really the question of when the medical opinions are far enough along to be built on.
Three things have to exist, at least in draft, before the economist can produce a report rather than a set of placeholders. The first is a causation opinion that separates the injury from the underlying condition: whether the patient would have returned to work, and when, had the care been proper; whether the condition itself would have shortened the worklife or the life; and what care the condition would have required regardless. The second is a prognosis for the injured path: the present work capacity, as the treating and retained physicians state it, and the life expectancy the medical evidence supports where the injury has changed it. The third, where the injury has produced permanent care needs, is a care plan prepared by the professional who authors such plans, listing each item of future care with its frequency and duration, so that the cost projection has something to price.
None of these has to be final. A draft causation opinion that states the apportionment in general terms is enough for the economist to build the earnings and household schedules and to set up the alternative scenarios; the figures are refined when the opinion is. What cannot be done is to build the but-for path from counsel's description of the case, because an earnings projection that assumes a return to work the physicians later rule out is a report that has to be rebuilt, and the opposing economist will have the first draft.
The part of the engagement that does not wait on the physicians is the financial record. The earnings history from the wage forms, tax returns, and pay records, the fringe benefits from the plan documents, and the household services from the household composition can all be assembled and reconciled while the causation opinions are being written, and the lost earnings guide describes what that base consists of. An economist retained once the medical theory of the case is clear, even before the opinions are in final form, uses the interval to build the base and to identify the records still missing, so that when the opinions arrive the only work left is the two paths and the difference between them.
That sequencing also protects the disclosure schedule. In federal practice and in most state courts the economist's report is due on a fixed date with the other expert disclosures, and the disclosure rules guide explains what the written report has to contain. A report whose base was built months earlier can absorb a late change in the apportionment opinion in days; a report that starts from nothing when the opinions arrive cannot, and the result is a disclosure that is either late or built on inputs no one has checked.
The apportionment between the injury and the pre-existing condition is the assumption that most changes the total, and it is the one assumption the economist does not make. Where the physicians agree, the report takes their opinion as its baseline and says so. Where they differ, the report presents the loss under each opinion, so that the fact finder can attach a figure to whichever finding it makes rather than being asked to interpolate. A report that adopts one side's causation opinion without presenting the other has made a medical judgment it is not qualified to make, and that is the first thing an opposing economist will say about it.
Life expectancy is the second difference. In an ordinary injury claim the economist draws the horizon for future care and household services from the published life tables for the person's age and sex, and the worklife expectancy method describes how the earnings horizon is drawn separately. In a malpractice claim the condition being treated may have shortened life on its own, and the horizon for each stream has to be the one the medical evidence supports: the but-for life expectancy for the path with proper care, the injured life expectancy for the path without it, and each stream projected over its own horizon. A delayed-diagnosis case is the clearest example, since the loss there is often the difference between two outcome paths, each with its own earnings profile, care profile, and horizon, and the report has to carry both.
Where the negligence caused or hastened a death, the analysis takes the structure of a wrongful death claim: the decedent's earnings and benefits, the household services, the support to each dependent over the period the dependent would have received it, and the personal consumption deduction built for the household as it stood at the death, as the wrongful death guide explains. The malpractice layer sits on top. The decedent's life and worklife expectancy may already have been shortened by the condition being treated, and the analysis has to use the expectancy the medical evidence supports rather than the population tables alone; where the physicians disagree about how long the patient would have lived with proper care, the report presents the loss under each expectancy.
The timing question is the same as in an injury case, with one addition. The survivors' records, the household composition, and the dependency periods for each survivor can be assembled from the family's records at once, and the decedent's earnings base from the financial records, so the economist retained early has the whole of the support analysis built before the life expectancy opinions arrive. What waits on the physicians is the horizon, and the horizon is applied last.
The defense economist's work is the same analysis from the other side, and the timing is driven by the plaintiff's disclosure. Once the plaintiff's economic report is served, the defense economist reads it in the order the reading guide describes, traces each input to its source, and tests above all whether the but-for path in the report matches the causation opinions in the record or assumes a healthier patient than the physicians describe. Where the plaintiff's report has measured the loss against full health rather than against the outcome proper care would have produced, the defense report shows the difference, and that single correction is often the largest item in the case.
The defense economist should be retained before the plaintiff's report arrives, not after, for two reasons. The first is that the defense's own causation and prognosis experts are the source of the alternative but-for path, and the economist needs their opinions in the same form the plaintiff's economist needs the plaintiff's. The second is that the rebuttal report is usually due a short interval after the affirmative report, and an economist who already holds the financial records and the defense medical opinions can produce it in that interval; one retained on receipt of the plaintiff's report cannot. A consulting engagement, in which the economist advises counsel on the plaintiff's figures without being disclosed, is available on either side and is described in the report review service.
The engagement begins with the records request: the earnings and benefit history, the tax returns, the household composition, the medical opinions in whatever form they exist, and the care plan if one has been prepared. The economist builds the base, states the assumptions the medical record supports and the ones that are still open, and returns a list of what is missing. When the causation and prognosis opinions settle, the two paths are built and the schedules are run under each scenario the physicians offer; the report presents the loss under each, with the apportionment, the horizon, and the discount rate stated so that any of them can be changed by the fact finder without rebuilding the analysis. In a medical malpractice matter venued in Pennsylvania, or anywhere, the venue's rules on discounting and on the measure of earnings are applied, and the present value method explains the choices a venue may direct.
What the economist does not do is read the medical record to decide what the condition would have done. That is the physicians' work, and a report that states clearly which medical opinion each path rests on is a report that survives the deposition question of where its assumptions came from. The economist's value in a malpractice case lies in converting the physicians' opinions into a loss figure that is traceable to them, and the earlier the economist is retained after those opinions take shape, the more of the report is built in the ordinary course rather than against the deadline.
Yes, and it is often useful, provided the economist is told which questions the physicians have not yet answered. The earnings base, the fringe benefits, the household services, and the records list can all be built from the financial record in the meantime. What waits is the but-for path and the injured path, which the economist builds only from the causation and prognosis opinions once they exist, in draft or final form.
No. The loss in a medical malpractice claim is measured against the outcome the patient would have had with proper care, as the causation opinions describe it. A patient whose condition would have limited work or shortened life on its own has that limitation on the but-for path, and the report measures only what the negligence added. Where the physicians disagree about the but-for outcome, the report shows the loss under each opinion.
The schedules are rerun on the new opinion and a supplemental report is served, which is why the report is built with the apportionment, the horizon, and the care plan as stated inputs rather than buried assumptions. A report whose base was assembled early can absorb a changed opinion quickly; the disclosure rules in most venues require the supplement, and the opposing economist will have the earlier version in any event.
Request a consultation on When to Retain an Economist in a Medical Malpractice Case or call (201) 343-0700. Plaintiff and defense counsel.