Scarring and Disfigurement in Personal Injury Lawsuits
Catastrophic injuries often result in permanent injuries, including scarring and disfigurement. At a minimum, scars and disfigurement in a visible location are embarrassing. Even a small scar or other residual injury can cause suffering. For some accident victims, disfigurement affects their ability over the course of their lives to get a job and enjoy their lives.
If the scarring or disfigurement occurs in an area of the body that is visible when clothed, such as the face, neck, or hands, these are likely to be perceived by a jury as more harmful than scarring on the back or stomach. In general, youth and gender can also affect the amount of damages recovered for scarring after an accident. Both insurance adjusters and a jury are more likely to perceive a young woman as suffering greater damage from scarring or disfigurement than a man with the same scar would.
Very obvious scarring can cause both cosmetic embarrassment and inflexibility in a particular area of flesh. For example, if you develop scar tissue at a joint, the increased width of skin in that area can result in loss of mobility as well as cosmetic changes. Other losses associated with scarring are lack of nerve sensitivity and psychological and emotional distress.
There are numerous intangible difficulties that can result from very severe scars or disfigurement. Severe disfigurement can affect a person’s ability to get married, make friends, have strong self-esteem, and enjoy various recreational activities.
If you have suffered scars or disfigurement due to somebody else’s negligence, you may be able to sue the negligent party for compensatory damages. When scars are disfiguring, and the party responsible acted egregiously in creating the situation that gave rise to them, that party may be held accountable for punitive damages as well.
Documenting a Scar or Disfigurement
If you have suffered a scar or disfigurement, you should make sure that your doctor has mentioned it in your medical records and noted whether there is a permanent or residual effect. Your doctor also should note whether the scar or disfigurement has any effect on mobility. Later, the medical records can buttress your claim to the defendant’s insurer or the jury for compensation for the permanent injuries.
How is a scar valued? This can be difficult to predict, although many personal injury attorneys do verdict searches to figure out how much juries in a particular jurisdiction have awarded in the past for a similar scar or disfiguring injury. In some cases, a plaintiff’s attorney may retain a doctor, not your treating physician, to opine on the cost of removing or repairing the scar as a way of demonstrating the value of the injury.
If you have already seen a doctor about removing the scar, you will have to note it in your discovery responses. The defendant in the case likely will subpoena the doctor for deposition, particularly if the cost of removal is not very high. Assuming that the doctor’s testimony is favorable to you, the defendant’s attorney will try to undercut his or her credibility or counter with an opposing expert. Additionally, the plaintiff may testify as to how the scar affected his or her life, and whether the plaintiff subjectively perceives it has limited his or her job or romantic prospects.
Sometimes, scarring may be the result of botched cosmetic surgery. If your cosmetic surgery resulted in scarring, you may have a medical malpractice claim. In order to recover for the scarring, you would have to show that the cosmetic surgeon did not act in accord with what other reasonably prudent cosmetic surgeons would have done in the same or similar circumstances, and thereby caused scarring or disfigurement. In many states, due to tort reform, it can be more challenging to recover the full spectrum of damages in medical malpractice cases than it is in personal injury cases.
