Life Care Planners: Strategies for the Defense

Written by: Sean Cox, Esq.

Life Care Planners purport to calculate the total cost of future care related to the catastrophic injury. The term is a misnomer. Typically they do not, nor are they typically qualified to, determine what medical care the injured person needs. Neither will Life Care Planners typically help the injured person or her family plan how to obtain or provide that care. According to one of the fathers of life care planning, Paul M. Deutsch Ph.D., “at no time during the plan development process should budgetary concerns influence care and rehabilitation recommendations.“

There are several ways to attack Life Care Planner testimony. First, a Life Care Planner can be challenged on his or her qualifications. Rare is the Life Care Planner that is a physician. Typically, a Life Care Planner will prepare a schedule of treatment for the plaintiff, and the physician will simply sign-off on the treatment needs without any changes. In such cases you have a non-physician, not involved in the plaintiff’s care, attempting to testify what future treatment the plaintiff will need and the cost of that treatment.

Another area ripe for attack is the difference between the life care plan and actual experience. Life Care Planners will usually begin the life care plan from a date soon after the Life Care Planner is retained. As is the nature of litigation, time may pass between when the life care plan begins and when the Life Care Planner testifies. Showing that the amounts recommended by the Life Care Planner differ greatly from the amounts actually incurred by the injured party is powerful evidence.

Next, in most jurisdictions, the amount of compensatory damages, including future medical expenses, must be reasonable. This can usually be measured by the usual and customary amount charged for the same procedure by similar providers in the same geographic area. Oftentimes, the Life Care Planner will not attempt to determine the usual and customary costs of “recommended” treatment. Instead the Life Care Planner will call various providers to determine how much the provider charges. This often leads to vastly inflated numbers.

Finally, there are two specific cost areas that should be addressed due to their regular occurrence and typically high costs: 1) home health care and 2) what we will term as “lifestyle costs.” Sometimes, just the cost of in-home health care can be millions of dollars. The life care plan may ignore the availability of free caretakers, such as public schools and family. The life care plan may also call for nearly around the clock in home care from a nurse or other medical professional. Rarely will the life-care plan include cheaper options such as residential nursing facilities. As is generally the case throughout life care plans, only the most expensive option is presented. There is significant academic publication that in-home health care is in most instances NOT appropriate from a medical/economic perspective and should not be included in a life-care plan¹⁾.

Finally, most life care plans will include many non-medical costs, such as housing, automobiles, gym memberships, and even lawn care. These non-medical costs can also be considerable parts of the life care plan, and are ripe areas to demonstrate to the jury the absurdity of the life-care plan as a whole. Injured persons should only be put back into the same position they were in had they not been injured. Yet many life care plans actually call for things that better than what the injured party had prior to the injury – houses where the injured person previously lived in an apartment; new cars where the injured person previously took public transportation; or services that they previously had to do themselves.

A strong defense requires attacking the life care plan head on. Understanding the history of life care planners, the goal of Life Care Planners, and the inherent weaknesses in the typical life care plan is the first step.