Brandon Swartz ()
The cost of future health care is often the largest component of economic damages in personal injury cases. Measuring and properly presenting these damages for a jury requires a life care plan, which is a detailed analysis of the type, quantity, timing and cost of the plaintiff’s current and future care needs.
The International Academy of Life Care Planners defines the life care plan as “a dynamic document based upon published standards of practice, comprehensive assessment, data analysis and research, which provides an organized, concise plan for current and future needs with associated cost for individuals who have experienced catastrophic injury or have chronic health care needs.”
In order to be qualified as an expert in life care planning, the expert must have a strong background in health care. The most effective life care planners typically have master’s degrees in nursing and have worked extensively in the field of nursing; however, individuals with degrees and experience in the fields of rehabilitation counseling, medicine, physical therapy, occupational therapy, speech therapy and psychology can all make excellent life care planners and can certainly be qualified to testify as experts before a jury.
A life care plan can be an effective tool for a plaintiffs attorney where any type of permanent injury exists, whether it is neurological, orthopedic, cognitive or psychiatric. The process generally begins with the plaintiffs attorney forwarding all of the relevant medical records to the life care planner, who reviews and categorizes the records. The life care planner typically will then interview the plaintiff or the plaintiff’s primary caregiver if the plaintiff suffered a cognitive injury. Thereafter, the most effective life care planners will contact each physician directly to discuss and address the specific and often unique health care needs of the plaintiff.
It is important to note that, from a cross-examination perspective, this is a significant advantage to the plaintiffs attorney, because the defense life care planner will not have had direct access to the actual treating physicians.
The life care plan itself will contain multiple sections that will include one-time costs and annual costs. The one-time costs are usually not as contested as the annual costs; however, even the one-time costs could be disputed if they involve something as expensive as buying or retrofitting a home for the plaintiff. The annual costs will inevitably serve to drive up the value of the life care plan.
When analyzing the annual costs suggested by the plaintiff’s life care plan, three factors will generally be attacked by the defense life care planner: (1) whether the treatment is even necessary; (2) whether the treatment could be done for a cost less than estimated by the plaintiff’s life care planner; and (3) whether or not the plaintiff’s life care planner is using the proper life expectancy.
From a cross-examination standpoint, the life-expectancy argument creates dangerous territory for the defense life care planner. Should the defense life care planner choose to challenge life expectancy, a skilled plaintiffs attorney can put the life care planner in the tenuous position of arguing, “We hurt your client so bad he will not even live long enough to need that treatment.”
With respect to the categories of care addressed in a typical life care plan, to the extent that there is a typical life care plan, those categories include medical surveillance (i.e., the number of visits that a plaintiff will require each year to various physicians who practice various disciplines of medicine), surgical care, hospitalization, therapeutic modalities (i.e., speech, occupational and physical therapy), mental health counseling, transportation, equipment, medications, supplies, case management, medications, replacement services, attendant care and housing.
Each of these categories can and will be criticized by the competent defense life care planner. I will take each one at a time and address the pros and cons.
Medical surveillance will generally be attacked by arguing an overlap in care between various disciplines of medicine and an exaggeration of the frequency of the care. When making the argument from the plaintiff’s perspective, a plaintiffs attorney needs to be mindful of the treatment to date. For instance, if the plaintiff is three years post-accident and the plaintiff has only seen his neurologist three times in the past year, the plaintiffs attorney needs to be mindful of a life care plan that suggests that six neurology visits a year are required.
Life care plans carry the danger of insulting a jury if they reflect unrealistically large numbers. So while certainly an argument could exist that the plaintiff’s injury will continue to deteriorate over time, requiring more frequent visits, consistency between the actual treatment and the projected future care is usually a more prudent approach.
In addition, a plaintiff needs to be careful about overlapping specialties. For instance, many times a neurologist and a pain management specialist will provide similar services to the plaintiff once the acute care period has expired. The plaintiff’s attorney needs to be prepared with a coherent counterargument as to why the services do not overlap in any particular case.
Future surgical care is often another hotly contested area of a life care plan. Many times a treating physician will testify that the condition “might” deteriorate to the point where future surgery is required or that, if all else fails, surgery may be an option. I find that arguments for future surgeries will be perceived as specious by the jury unless the plaintiff has already undergone a surgery. For instance, if the plaintiff is three years post-injury and has not yet undergone any surgical procedures, it is unlikely the jury will readily accept that surgery is more likely than not in the plaintiff’s future.
On the other hand, if the plaintiff has had multiple surgeries, most surgeons can explain the degenerative process well and that future surgeries are inevitable. Also make sure the future surgery argument is going to coincide with the plaintiff’s testimony. If you know your client is going to concede on cross-examination that he or she would never get surgery because of a phobia of the procedure, do not ask the jury to award your client the monetary value of that future surgery.
Medications can also serve to significantly drive up the cost of a life care plan. Plaintiffs attorneys need to be wary of the specific function of each medicine and whether or not it is likely that medicine could be prescribed for a lifetime. For instance, certain medicines can only be prescribed for a limited period of time because of their severe side effects. Similar to all other aspects of the life care plan, the medications should coincide with the medications already taken by the plaintiff. With that in mind, plaintiffs attorneys should obtain a printout from a plaintiff’s pharmacy and present it to the plaintiff’s life care planner. That same printout can be a very effective tool on cross-examination if the defense life care planner attempts to shave away at the medicines he or she believes the plaintiff will require in the future.
Attendant care is another area where plaintiffs attorneys need to tread lightly. Certainly there are those situations where the plaintiff already requires attendant care either in the form of visiting nurses or around-the-clock hospitalization. In those cases, the only dispute will generally come down to the cost of the attendant care.
Many times, however, the life care planner adds attendant care with the presumption that the plaintiff’s spouse or family members will no longer be able or willing to care for the plaintiff. On cross-examination, plaintiffs need to be mindful of their arguments throughout the rest of the trial. For instance, if multiple family members are going to testify, those family members could be asked on cross-examination whether they would be willing or able to provide the same services requested in the life care plan. Plaintiffs attorneys should be mindful of uniformity in the answers so that the answers do not make it seem that they are needlessly inflating the financial damages.
Obviously, I have merely touched on the breadth of the subject. Plaintiffs attorneys should consult Roger O. Weed and Debra E. Berens’ handbook, “Life Care Planning and Case Management,” for a detailed analysis of the life care plan and an excellent bibliography of scholarly articles on the subject.
Brandon Swartz is a founding partner of Swartz Culleton. His practice focuses on all types of personal injury cases, including wrongful death, medical malpractice, civil rights violations, motor vehicle, premises liability, products liability, trucking accidents and workers’ compensation.