Plaintiffs’ lawyers recognize the value of expert testimony regarding life care planning. Defense attorneys often bemoan the verdicts that juries award in reliance on the testimony of a life care planner. While insurance companies have an incentive to minimize verdicts for plaintiffs, judges generally recognize the admissibility of a life care planner’s expert testimony to prove the full extent of a plaintiff’s loss.
An insurance defense lawyer recently examined medical malpractice lawsuits from Cook County, Illinois over an eight-year period. In one-third of the cases in which juries awarded future medical damages to the plaintiff, the plaintiff relied on the testimony of a life care planner. The average total verdict in cases where life care planners testified was 437% higher than the average verdict in cases where life care planners did not testify.
When the lawyer limited his analysis to the components of verdicts that awarded future damages, he found that the disparity was even more striking. When life care planners testified, the award of future damages was 937% higher than those cases in which a life care planner did not testify.
What Testimony Should a Lawyer Expect from a Life Care Planner?
By using standardized methodologies that are deemed reliable in the field of life care planning, experts determine the cost of meeting the current and future needs of disabled injury victims. Life care planners rely on medical evidence, including functional capacity evaluations, to establish the limitations that are imposed by disabilities. They then conduct a thorough investigation to determine the financial burden of coping with those disabilities in a way that will allow the injury victim to have a life that is similar in quality to the life the victim would have enjoyed if the disability had not occurred.
Life care planning testimony is premised on the legal principle that an injury victim should be “made whole.” Everyone understands that a victim who suffers from a permanent disability can never be restored to his or her former condition. Life care planners nevertheless determine how a victim can enjoy a life that is comparable to the life that he or she would have had in the absence of a disability.
Life care plans consider both medical and nonmedical needs that must be met to make the victim whole. Those needs depend upon the specific facts of the case. Expert life care planners assess those needs by consulting with healthcare workers, reviewing medical records, interviewing the injury victim and his or her family members, and researching a variety of databases that provide estimates of relevant costs.
Medical needs may include the cost of future medical procedures, hospitalizations, lab tests, diagnostic tests (such as x-rays, CT scans, and EEGs), physical or occupational therapy, speech therapy, psychological counseling, and the cost of future medications. Other costs associated with future medical needs may include a lifetime of:
1. Wheelchair replacements.
2. Prosthetic device replacements.
3. Walkers, canes, and crutches.
4. Spinal cord stimulators.
5. Pain pumps and TENS units.
Nonmedical needs may include the lifetime cost of:
1. Transportation (including wheelchair-accessible vans over the course of a lifetime or the use of specialized transportation services).
2. Home remodeling (for example, widening doors to make them wheelchair-accessible, making showers accessible, and adding ramps, chair lifts, and bathroom bars).
3. Home furnishings (such as adjustable beds).
4. Vocational rehabilitation expenses.
5. Physical rehabilitation expenses (such as a gym membership or exercise equipment).
6. Hands-free communication equipment and electronic devices.
7. Home health aides.
8. Cleaners, yard care workers, and other workers to perform tasks that the victim can no longer accomplish.
9. Institutional care.
10. Sessions with social workers or counselors to help the victim adjust to living with a disability.
Life care planners compute and calculate the cost associated with each component of a life care plan. They rely on objective sources of data to determine those costs. For example, studies have determined the average time a wheelchair can be used before it needs to be replaced. Using that data, life care planners prepare an expert report that supplies the information required by federal or state law.
Admissibility of Testimony
Life care planners focus on the impact of identified disabilities upon the victim’s life without regard to the cause of those disabilities. Whether disabilities are caused by the defendant in a lawsuit is a question that the plaintiff’s lawyer will prove with other evidence.
Experts are allowed to base their testimony upon assumed facts if those facts are supported by other evidence in the case. When lawyers present medical evidence, including functional capacity evaluations and medical projections of necessary follow-up care, they lay a factual foundation for a life care planner’s testimony.
While insurance defense lawyers routinely object that only a doctor should testify about a disabled plaintiff’s future needs, courts just as routinely hold that life care planners are entitled to rely upon medical evidence in preparing a life care plan. Life care planners are qualified by education, training, and experience to gather data from medical records and standardized sources of information, including life expectancy tables and databases that document the cost of medical procedures. Life care planners also use reliable databases to determine, for example, the useful life of wheelchairs, the expense of service providers in the plaintiff’s location, and other facts that inform their opinions.
Projecting future needs based on known facts and estimating the cost of meeting those needs is a methodology that courts have long regarded as reliable. Whether the court determines admissibility by using the federal Daubert standard, a state variation of the Daubert standard, the Frye standard, or a hybrid standard, courts have consistently ruled that life care planning expert testimony is admissible.
Insurance defense lawyers have nevertheless objected that life care planning experts base their testimony on speculation and cannot prove future damages to a reasonable certainty. Courts generally rely on the principle that future damages are reasonably probable when a victim is permanently disabled, and that no expert should be expected to prove future events with certainty.
As one court stated, “expert testimony is admissible where it addresses the probability, short of reasonable certainty, that future treatment may be necessary and of the potential cost of such treatment.” When it is reasonably certain that a permanent injury will have future consequences (such as the need to remain on a medication for life), courts generally do not require each and every potential consequence to be proved with certainty. Life care planners give juries a reasonable basis to assess an award of future damages even if nobody can say that probable consequences are certain to occur.