A Plaintiff’s Attorney’s Perspective on Life Care Planning
It is better to judge a man by his questions than by his answers.
Plaintiff’s attorneys define themselves by their ability to ask the right questions, not only of their opposition, but also of themselves and their own clients. In the catastrophic case, the plaintiff’s attorney understands that a myriad of questions may and should be asked about the future. Yet that same attorney is buffeted by thoughts that no real answers can be given. He or she fears that all attempts to probe the future or assist the trier of fact in probing the future will slide into that murky realm of the possible and away from the safe ground of the probable, where he or she must remain to prove a case. The attorney also knows that the more specific the questions become, the more difficult they are to answer. The safe thing to do then seems to be to generalize about future care and future needs and thus avoid these pitfalls.
Following this course leaves the attorney and his or her client ill-equipped to stand before the trier of fact and ask for specific compensation for the special damages for future medical and rehabilitation needs. The attorney knows the judge or jury will be asking the next obvious question: What will those needs be, and how much can we expect that they will reasonably cost? The modern plaintiff’s attorney must and should provide the judge or jury with all the evidence that exists on those issues.
As plaintiff’s attorneys, we are accustomed to marshaling all our own evidence, tracking down its sources, and shaping our cases so that they can be fairly and clearly presented to the judge or jury. We are reluctant to say that in the catastrophic case, the medical and rehabilitation needs are too complex for us to attempt that marshaling of evidence. We do not know where to begin. We do not know what questions to ask.
Fortunately, we now have the life care plan and qualified persons able to prepare it. This specialization is being followed more and more by various rehabilitation professionals and nurses who, using their background training, become proficient at the business of working out a plan for the future medical and rehabilitation needs of the client. In working with the professional life care planner, the attorney does not abdicate the attorney’s traditional role as the one who asks the critical questions and who marshals the evidence to prove a point. The attorney joins with the life care planner to make sure the right questions are asked. The skilled plaintiff’s attorney recognizes that he or she needs the assistance of an equally skilled life care planner to identify those questions
Roles of the Forensic Expert
There are generally two areas that the attorney must address in litigation: liability and damages. When a party is found liable, that party is determined to be at fault. The next task is to prove damages, or the costs associated with the incident. The rehabilitation professional may act as a consultant, which implies that he or she will work behind the scenes to assist the attorney with developing a case or reviewing the work of others (Weed, 1995; Riddick & Weed, 1996; Weed & Field, 2001). Although psychologists, rehabilitation counselors, neuropsychologists, physicians, therapists, and others offer these services, this seems to be a unique role for rehabilitation nurses and life care planners. Indeed, many larger law firms employ consultants on staff to conduct medical research, locate experts, develop deposition and trial questions, summarize medical records and depositions, and provide other litigation support services.
A more common role for the rehabilitation professional is to act as the expert and develop opinions, which will be offered as testimony. The rehabilitation expert will generally participate in the damages portion of litigation by assisting in establishing the cost of future care and the significance of the incident with regard to the person’s ability to perform work (earnings capacity). Most life care planners are not qualified to offer opinions in the areas of future medical care costs and earnings capacity loss. Therefore, two experts will usually be retained to opine about these separate damages.
Life Care Plans in the Catastrophic Case
There are other very specific reasons why the plaintiff’s attorney should use a life care plan in the catastrophic or neurolegal setting. It is an essential tool for settlement and trial preparation since it gives the insurance company and its counsel a clear look at what will be presented to the jury (Elliott, 1993; Taylor, 1996). It gives the plaintiff’s attorney the comfort of knowing that those things that could be addressed have not been left to chance and uncovers items of damages that were not thought of by the attorney (Sbordone & Shepherd, 1991).
Life care plans are becoming more and more acceptable to different courts, and they are increasingly required in specialized situations such as pediatric neurolitigation (Sellars, 1996). There are pitfalls, however, that must be watched for by the plaintiff’s attorney. The attorney cannot assume that the life care planner in every instance understands the legal system to the extent that the planner can know what will or will not be properly received into evidence. It is tempting to assume that because you have found the life care planner, as a trial attorney, your job is over in that area. Nothing could be further from the truth (see Weed & Johnson, 2006, for several summarized life care planning litigation related cases).
The attorney must make sure that the life care planner understands the need for a medical evidentiary foundation for each item in the plan. There have been cases where the entire plan was thrown out, and the award with it, because the attorney, and perhaps later the initial trier of fact, took the life care plan as the word of the life care planner and did not show or prove that the various items in the plan were there because they were authorized by medical personnel. In the case of Diamond R. Fertilizer, et al. v. Jimmy L. Davis, the court found that the lower court had approved a treatment plan that allowed the rehabilitation company that prepared the plan to determine the treatment needed. The court held that the authority for the plan must rest with the physicians, and it disallowed the plan. With no showing of medical necessity or physicians’ orders, the plan provided for a TV, a VCR, a specially equipped van, a whirlpool, a hydraulic lift, and an environmental control unit for the client. The court found no justification and denied all of these items.
Another area of care in crafting life care plans that the attorney must follow is in those cases where the funding is structured in dependence upon a specific health care policy and not upon general medical necessity. In the case of Dempsey v. United States of America, the plan provided for daily attendant home care. The lower court had mistakenly assumed that such care had been provided by the existing CHAMPUS policy that had to be offset. A close scrutiny by the appeals court showed that such care was not provided and the life care plan with that provision was approved. The attorney not only must see that the plan provides necessary care, but also must often prove that it is covered by insurance.
Logical Consistency of Life Care Plan
The attorney must also assume that the plan he or she uses may be scrutinized by the opposition or by the court for logical consistency. If there is illogic in its premises and if it is inconsistent, the plan may be considered flawed and not adopted at all. The plaintiff’s attorney does not have to be a life care planner to read the plan in light of its logical underpinnings. For example, if a therapy, such as speech therapy, is proposed to terminate at a certain age and yet speech evaluations are proposed to continue beyond that age, there should be a very logical reason why the evaluations continue after the therapy is discontinued. This also applies to areas such as physical therapy and particularly applies to pediatric issues. If a child is to receive certain therapy only through childhood, evaluations that are pediatric in nature should not continue under the plan past childhood without specific explanation.
In the case of Brewer v. Secretary of Health and Human Services, the court applied just such a fine-toothed comb to the plan. Among other things, the court found that all parties and their life care planners had misread and miscalculated the dosage and amount of antiseizure medication. The court took it upon itself to research the issue and to determine the dosage of medication and the proper cost. The court also found that the replacement of assistive communicative devices was not coordinated to their useful life and that no proof was given for the number and type of devices. Finally, the court approved an award for counseling for siblings and parents, citing reasons of well-being for the patient, not the family itself, which the court based on an article from the Journal of Head Trauma Rehabilitation. None of these reasons had been advanced by the plaintiff.
The Role of the Plaintiff Attorney in the Life Care Plan
From the plaintiff’s perspective, the life care plan is an integral tool in the proof of damages in neurolitigation or any other catastrophic injury. The attorney must continue to play an active role in making sure the plan fits the parameters for admission into evidence and that the plan meets the test of logic. The life care planner and the attorney must work as a team in reaching this goal. The plan cannot simply be drafted by the life care planner and then handed to the attorney, who, in turn, tenders it into evidence. It is not a chain letter to be passed on. It is a part of the mosaic of the case and must be viewed as such.
The life care planner also brings a new analysis and a fresh look to the legal case. If the plaintiff’s attorney is open to examining new perspectives, new things are discovered about the damages aspect of the case. Some may be good for the case, such as an element of damages that should
be sought but has been overlooked. Some may be bad for the case, such as the discovery of some exaggeration of an aspect of damages by the client, well intentioned or not. The life care planner is searching for different information than the attorney and, in reviewing the same material, will shed a new light on it for the attorney.
The level of objectivity of the life care planner is therefore very important. It is essential that the person doing the life care plan give the information to the attorney without sugar coating and without bias so that the attorney can adjust the theory of the case to the facts that are developed and not vice versa. This is particularly true in the area of employability. By using devices such as the functional capacities assessment and other tools, the vocational assessment as a component of the life care plan becomes the foundation for credibility. The jury can see what jobs the plaintiff may reasonably expect to perform in the future, how they are suited to the client, and why he or she cannot perform the tasks that would allow other employment. All this is integral to the solid life care plan. It shows thoroughness on the part of the plaintiff’s team in bringing the facts to the decision maker on the other side, be that person an adjuster or a juror. The pitch that the plaintiff has compensation neuroses fades before the plain facts of what he or she can do, what he or she cannot do, and how this will affect life in the future (Elliott, 1999).
Special Forensic Considerations
It is useful for the rehabilitation expert to be sensitive to special rules and issues related to civil litigation. A few are listed in the following.
The ethical rehabilitation professional who practices in forensic settings provides a valuable contribution by establishing a reasonable treatment plan, helping to settle personal injury litigation, and providing the jury with information on which to base an award. Offering testimony is fraught with obstacles such as (1) introducing hearsay evidence and (2) developing appropriate exhibits for the courtroom. In general, hearsay refers to relying on information from another person that may be unreliable or inappropriate. Hearsay taken to the extreme can be applied to your personal identity. For example, you are likely to know your name because someone (your parent) told you your name many years ago. Rules of evidence (with special emphasis on 702 and 703) have been developed to address this problem (see Table 24.1 and www.law.harvard .edu/publications/ evidenceiii/rules/702.htm).
Table 24.1 Reducing Hearsay Challenges
- Are you qualified as an expert?
- Are you offering opinions that are in your area of expertise?
- Are you relying on facts and data that you and others in your professional field commonly rely upon?
- Are people employed or retained by you working under your direction and supervision?
- Have you provided a foundation for medical opinions by utilizing physicians for medical diagnosis?
As a result of Daubert v. Merrell Dow, Federal Rule of Evidence 702 has been amended to address the tests for admissibility of expert testimony. The new rule states,
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data,
(2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Effective, December 1, 2000.
In order to seek a uniform approach to the adoption of Rule 702 by the various states, the National Conference of Commissioners on Uniform Laws drafted what has been designated Uniform Rule 702 with the goal of creating a more uniform expert testimony admissibility standard across state jurisdictions (available at www.law.upenn .edu/bll/ulc/ure/evid1200.htm). The rule reads,
(a) General Rule. If a witness testimony is based on scientific, technical, or other specialized knowledge, the witness may testify in the form of an opinion or otherwise if the court deems the following are satisfied:
(1) the testimony will assist the trier of fact in understanding evidence or determining a fact in issue;
(2) the witness is qualified by knowledge, skill, experience, training, or education in the scientific, technical, or other specialized field;
(3) the testimony is based upon principles or methods that are reasonably reliable, as established under subdivisions (b), (c), (d), or (e);
(4) the testimony is based upon sufficient and reliable facts or data; and
(5) the witness has applied the principles or methods reliably to the facts of the case.
(b) Reliability deemed to exist. A principle or method is reasonably reliable if its reliability has been established by controlling legislation or judicial decisions.
(c) Presumption of reliability. A principle or method is presumed to be reasonably reliable if it has substantial acceptance within the relevant scientific, technical, or specialized community. A party may rebut the presumption by proving that it is more probable than not that the principle or method is not reasonably reliable.
(d) Presumption of unreliability. A principle or method is presumed to be not reasonably reliable if it does not have substantial acceptance within the relevant scientific, technical, or specialized community. A party may rebut the presumption by proving that it is more probable than not that the principle or method is reasonably reliable.
(e) Other reliability factors. In determining the reliability of a principle or method, the court shall consider all relevant additional factors, which may include:
(1) the extent to which the principle has been tested;
(2) the adequacy of the research methods employed in testing the principle or method;
(3) the extent to which the principle or method has been published and subjected to peer review;
(4) the rate of error in the application of the principle or method;
(5) the experience of the witness in the application of the principle or method;
(6) the extent to which the principle or method has gained acceptance within the relevant scientific, technical, or specialized community; and
(7) the extent to which the witness’s specialized field of knowledge has gained acceptance within the general scientific, technical, or specialized community.
At the time of this publication, the updated Uniform Rule 702 has been slow to catch on; it would be wise for the practitioner to use this more detailed rule in preparation for Daubert challenges or to make the same, since it is the most comprehensive pronouncement on admissibility standards under Daubert that we have seen. It appears that most states are waiting until further clarification appears at the federal level before adopting these rules in their entirety. Even Uniform Rule 702 does not provide a clear method for making the determinations required under Daubert, and so far life care plans have not reached the level of serious challenge. If they become more critical to large verdicts with a cap on noneconomic damage, that may change. (For an excellent discussion on Daubert-related issues for the life care planner, see Countiss & Deutsch, 2002.)
Although the following discussion is based on federal rules, most states have either adopted these rules in some form or established precedent through previous legal cases. The old Rule 702 states that a witness qualified as an expert by knowledge, skill, experience, training, or education may testify by offering an expert opinion. Rule 703 allows the expert to rely on facts or data, which are not entered as evidence, if the information is commonly relied upon by experts in the field. Practically, this is demonstrated in two ways. First, the consultant may hire a subcontractor or use an employee to develop research, assist in report writing, and summarize medical records. As long as these professionals are qualified and they work under direction and supervision by the lead consultant, the information should be allowed in the courtroom. Second, it is common for life care planners to rely upon physicians for treatment plans, vendors or catalogs for costs, and other sources for the foundation of the plan. The key issue is related to what the consultant and others in the field commonly do to conduct business (see Weed & Field, 1994, for more federal rules of evidence information).
In most rehabilitation settings, it is expected that consultants will provide written reports with conclusions and opinions. The same standard should apply to the role of the expert witness. Attorneys may occasionally ask the expert to act as an expert but not provide a written report. Although narratives may be optional, conclusions, recommendations, and opinions should be provided in writing. In this author’s opinion, failure to follow the standards of the expert’s industry reflects badly and ultimately damages the profession as a whole. Experts who play the game of challenging the attorney to guess what they will say at trial through depositions are shortsighted. This has become enough of an issue that some jurisdictions now require a written report.
Disclosing Prior Expert Testimony
A recent rule has been added to federal and other cases that may require revealing cases in which the consultant testified in deposition or trial during the previous 4 years (referred to as Rule 26; see www.law.cornell .edu/rules/frcp/Rule26.htm). Data should include the case caption, the date
of the deposition or trial, and the state in which the case was filed. This disclosure does not apply to cases where the life care planner was acting as a consultant or the expert did not testify.
Collateral source rules vary from state to state and jurisdiction to jurisdiction (i.e., federal vs. state cases). In practical terms, collateral sources refer to rules that require a personal injury award be offset by reasonable available services and products. Generally, this is represented in pediatric cases by including the free services that are available in the school system through the Individuals with Disabilities Education Act (IDEA). This may include special education, occupational therapy, physical therapy, speech and language therapy, aide services, and specialized equipment and supplies. Other options may include offsets for Medicaid or Medicare. The consultant is advised to discuss this issue with the attorney prior to rendering an opinion.
An interrogatory is a list of questions that is submitted through an attorney usually to the client but sometimes to an expert. A series of questions is asked that is expected to elucidate the reason you were called as an expert. This is usually a prelude to a deposition. Generally the other side is attempting to discover what will be entered as evidence at a trial. This is a formal procedure that should not be taken lightly.
The rehabilitation consultant’s role at the deposition is similar to his or her role at a trial. The primary difference is the location and the lack of the presence of a judge. The deposition can be conducted at the office of the expert, at a court reporter’s office, in the office of the attorney, and occasionally by telephone. A judge is not present to preside or to rule on objections by the counsels for plaintiff or defense. While clients may attend, their presence is uncommon.
There are two types of deposition that the expert is likely to face. One is an evidence deposition. The evidence deposition generally is called by the side that retained the expert. In this situation, either the attorney believes there is good reason to attempt to settle the case, or the expert will not appear live at trial. Both attorneys present their case similar to how it would be presented at trial. In some cases the expert may be videotaped, although more often than not, the deposition will be transcribed from an audiotape or other court recording method. Many physicians utilize this method. Another type of deposition is the discovery deposition. In this case the other side is attempting to uncover or discover what evidence is expected to be offered at trial. Usually the attorney that retains the expert being deposed does not ask questions of the specialist since the attorney does not want to give away any more information than necessary.
The attorney who requested the deposition initiates direct examination. Cross, redirect, and recross examination may follow. A certified court recorder records (and later transcribes) the entire testimony. Since a judge is not present to control the proceedings, objections by either side are stated. The rationale for such objections are given and discussed. The judge, prior to the submission of the testimony, will make a ruling on each objection into evidence at a trial. The rehabilitation expert should be aware that although the deposition appears to be a much more informal process, its content is equally important to that of the formal courtroom
testimony. The entire deposition, or selected portions of its contents, may be read at the formal hearing or trial.
Note that some professionals find themselves in awkward positions. Many times opposing attorneys ask questions of experts that would not be allowed in trial when a judge is present. The experienced expert can usually set boundaries, but professionals new to the industry may not know what is proper. Seeking training in this specialized area is recommended in order to avoid compromising your reputation or offering opinions contrary to forensic rules. There may also be occasions where the expert is bordering on saying something that documents malpractice, such as incorrectly disclosing records that have been subpoenaed or providing confidential information about other clients. Remember, the attorney that retains the expert is not representing the expert. An expert should not expect personal legal advice from the attorney who hired him or her; if an expert makes this assumption, he or she is treading on dangerous legal territory. The expert is advised to consult his or her attorney if there are legal questions.
A subpoena is a formal legal request for records or appearance at a deposition or trial. It may or may not be a proper request. For example, the expert receives a subpoena for confidential records of a client. It happens to be a difficult client who is involved in litigation. Should the records be sent? The expert may decide that he must comply with the threatening warrant. However, the expert must first be clear on confidentiality. The expert should know that a judge does not usually review a subpoena for records. If the client has not signed a release, the expert should check with his own attorney before releasing the records. Recently, this author had a personal injury defense attorney subpoena him for a deposition. The expert was to appear at a specific date and time, but if he submitted records, the deposition would be canceled. The author contacted the attorney to tell him records would be released when a release of information was received. Ultimately, the deposition and the requested records were canceled when the request was disclosed to the client’s attorney since the expert was not being called to testify. Another example involves a rehabilitation counselor who received a subpoena from a defense attorney for her records on a client. The counselor felt compelled to send the records only to learn that the client’s attorney was furious since she had also provided the other side with attorney work product, which was privileged communication. Generally, it is best for the rehabilitation professional to agree to provide information once the appropriateness is determined. This is accomplished by writing to the attorney who requested or subpoenaed the information and explaining that as soon as proper releases or a judge’s order is received, the information will be provided promptly.
On the other hand, a subpoena for appearing in court as a witness carries a different expectation. If the individual is to appear as a witness to the event or accident, then it is expected that he or she appear or suffer possible warrant for arrest. On the other hand, if the individual is to appear as an expert witness, it is generally accepted that one cannot be forced to provide an expert opinion even though one may be required to appear.
Trial by Jury
The primary difference in a jury trial and other settings is the courtroom. At the jury trial, the expert is called to testify at the time the attorney deems to be the most critical for such testimony.
The life care planner most frequently testifies without the benefit of hearing live testimony (referred to as sequestering), although in some courts the expert is allowed to sit in and listen to others testify.
The presence of a jury and the necessity to sit in the witness chair add an air of sophistication and formality that matches no other legal setting. It becomes very easy to do those things that one should not and to forget to do those things that one should. The consultant should realize that the jury will not remember most of the testimony presented. What is remembered is the impression they held of the expert. Therefore, it is very important to avoid confrontation with the cross- examining attorney and become an advocate for one side over another. Remaining as objective as possible is vital but very difficult in the heat of the battle.
One more suggestion is to speak to the jury since the lawyer probably already knows the answer to the question. This is harder than it sounds. However, many juries have been sitting for days in a boring (usually) courtroom and may “doze off” at times. Speaking directly to the jury will help keep them on task and perhaps leave them with a better impression. There are several ways to display evidence to a jury to help convey your opinion in a more interesting way. For example, you may choose to write figures on a flip chart, blow up the life care plan or vocational opinions on a large chart that can be seen by the jury and others, use transparencies, make slides of the evidence, and, as has occurred more recently, utilize computer-based displays. In general, it is recommended to use an educational approach by teaching the jury. This will be more interesting to the jury and will allow the expert to stand up and move around.
Recent Trends in Life Care Plan Value
There is a perception among plaintiff’s attorneys that the relentless pursuit of a cap on noneconomic damages in civil cases will eventually bear some fruit and that, in most jurisdictions, they will be faced with a cap on the recovery of items such as pain and suffering. At both the federal and state level these issues are being renewed with new majorities in the U.S. House and Senate. As a consequence, many attorneys are already beginning to refocus their efforts on the maximization of economic losses to compensate for this change in the landscape. It is easy to see how the attorney must rethink the approach to catastrophic cases if a limit is to be applied for noneconomic losses. The juries will be asked, more than ever, to apportion their verdicts so that they must identify or allocate an amount to each category. Such a new approach means that life care plans become more important than ever as the keystone of an adequate recovery in the view of the plaintiff’s attorney.
A variation on this theme is found in one of the recent federal cases to discuss a life care plan. In Lebron v. United States, No. 00-51101, 5th Circuit, decided January 5, 2002, the 5th Circuit Court of Appeals was reviewing a Federal Tort Claims Act case in which a life care plan had been used. In such cases the plaintiff must make a demand before filing suit. The demand is considered to set the limit of recovery and any recovery in excess of the demand in the principal case must be written down to the extent it exceeds the demand. In this case the demand was $20 million. The recovery was $20.6 million. The plaintiffs, in seeking to avoid the stricture of this rule, argued that they could not have known about certain damages at the time they filed the demand, citing the life care plan as it was later developed in proof of that fact. The court did not agree and reduced the award to the $20 million demand, pointing out that the case was known to be very complex from the beginning and nothing new developed after the demand was filed. The fact that the life care plan as produced was greater than anticipated was not adequate reason to change the rule as
the court saw it. Had the focus been on the life care plan from the beginning, perhaps the result would have been different. Indicators are that life care plans will be involved in such catastrophic cases in the very early stages since so much more may be riding on them.
In the final analysis, the person receiving the life care plan for review or hearing it in testimony will filter that information through his or her own life experiences. If it contains items that just simply do not seem reasonable and necessary, those items will not be accepted. It will create an aura of skepticism about the entire plan. It is the job of the attorney working with the life care planner to analyze the plan and to search for items that may be perceived in this fashion. In many instances, the remedy is simply a matter of giving a proper explanation of why the item is needed, rather than an oblique reference to the source. Some items speak for themselves. Some require explanation if they are esoteric or very technical. It must be remembered by everyone involved in the process that communication is primary and essential.
The plaintiff’s attorney in every case is sending a message in two parts: the attorney (1) must convince the opposing side of its obligation to pay money for damages, and (2) then must convince the opposing side how much it should pay. If the attorney is not certain about the future needs of the client, the attorney cannot maintain ardor in seeking that amount. To be effective, the attorney first must be convinced of the truth of the case and then must convince the opposing side. The life care plan is indispensable to that process. Properly done, the life care plan convinces the attorney. Properly presented, the life care plan convinces the jury. When the file is closed, the attorney will have to reflect on whether what was done was all that could be done to see that the client’s life, all of the remainder of that life, was cared for in the best possible manner. It is often the life care plan that makes that reflection a source of satisfaction rather than regret.