As a defense litigator I’m relied on to evaluate the settlement and verdict potential of cases for my clients. I recently settled a case that involved a female teenager with a large keloid scar on her leg below her knee. Personal injury cases involving scarring may seem straight forward but they can be challenging to evaluate. In a typical injury case we look at items like medical bills, pain and suffering, permanency, disfigurement, lost wages and loss of a normal life. However, in a scarring case there are particular nuisances to the evaluation.
First, you should be familiar with some basic types of scars.
- Hypertrophic — These scars are red, thick, and usually elevated; growth is limited to the original wound and may disappear naturally but it can take a year or more.
- Atrophic — Usually small and depressed; often from acne or chickenpox, but can occur from trauma.
- Keloid — Common with darker skin; irregular, rounded, and thick; extends beyond the original wound; may not develop for months.
- Contracture — Contractures are an abnormal occurrence that happens when a large area of skin is damaged and lost, resulting in a scar. The scar formation pulls the edges of the skin together, causing a tight area of skin.
Right or wrong, gender and marital status must be considered in evaluating scar cases. Traditionally, a scar on a female will be judged to be worth more than on a male. In addition, a scar on an unmarried person will be valued higher than on a married person. Expect opposing counsel to vehemently argue the emotional component of an unmarried female client who has visible scarring.
Age must also be contemplated. A scar on a younger person will be worth more than on an older person. Arguments will be made by plaintiff’s attorney that a child or teenager will have to live with the scar for the rest of their life. This leads into the permanency evaluation. Will the scar fade with time or can it be lessened by revision surgery? The potential cost of the revision surgery must be taken into consideration. Revision surgery cost will be based on the length, width, location, and type (keloid, hypertrophic etc.) of the scar. Will revision surgery outcome be helpful or hurtful to the defense? A study I recently reviewed, concluded that overall scar revision patient satisfaction outcomes were; 2.34% worse, 15.89% no change, and 81.78% better, distributions that remained similar regardless of body site (Miranda BH, Allan AY, Butler DP, Cussons PD. Scar Revision Surgery: The Patient’s Perspective. Arch Plast Surg. 2015 Nov;42(6):729-34. doi: 10.5999/aps.2015.42.6.729. Epub 2015 Nov 16). An expert opinion that a particular scar revision surgery has a high rate of success could be helpful to the defense.
The scar position on the body is an important factor to consider. Facial scars are valued higher than scars on other parts of the body. Scars that would normally be covered by clothing will be evaluated lower. However a scar on the leg that would be visible in shorts, a skirt or swimwear can have significant value.
Employment factors are another issue. Plaintiff’s current or future employment could be effected by scarring. Unfortunately, job interviewers sometimes correlate attractiveness with skill and competency. You don’t have to be a model to argue that a scar could affect your work life. Employment opportunities in social media, fitness, sales or any type of customer service could be hampered by scarring. If the scar is significant enough, expect plaintiff’s attorney to retain a vocational expert to calculate the expected loss of earning capacity based on the disfigurement caused by the scar. Although somewhat obvious, visual inspection of the scar will be your most import tool to evaluating the case. You must know exactly what a juror will see at trial when the plaintiff shows his or her scar up close. While your initial evaluation will usually be made by viewing photographs, the evaluation to your client needs to be immediately updated once the scar is viewed in person at deposition. The position, size and overall look of the scar should be noted. Let your client know early on in the case if you realistically expect jurors to be shocked or have significant emotional reactions to seeing the plaintiff’s scar.
Paul Steinhofer is a litigation attorney at McKenna Storer in Chicago, IL, practicing in both Illinois and Indiana. If you have any questions regarding this or any other litigation issue, please contact Paul at psteinhofer@mckenna-law.com or 312-558-3900.
McKenna Storer has been serving its clients for more than 66 years. We are open and available for consultations at both our Chicago and Woodstock locations. Please follow us on or our LinkedIn, Twitter or Facebook pages.