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WHAT DID THIS LIFE CARE PLAN JUST DO TO MY TRUCKING CASE?

Written by: James Embrey, Esq. and Asya Morgan, Esq.

DEPOSITION STRATEGIES FOR ATTACKING  PLAINTIFF’S LIFE CARE PLANNER

 

FOREWORD

So there you sit at your desk, sipping on your 3rd Diet Coke (and it’s only 6:24am), dutifully defending your trucking cases.  You think you have it all figured out.  You know the value of your cases based on the strengths and weakness of each one.  You’ve advised your client of your thoughts and impressions and you soldier on.  DING!  Your email notification sounds for your 22nd email of the day (you’ll top out at around 104).  You look up and read the preview pane.  It’s from plaintiff’s counsel in one of your trucking cases which you thought you had nailed down on liability and damages.  SUBJECT LINE“Plaintiff’s Life Care Plan”.  Huh?  You click on the attachment and see the Life Care Plan was prepared by “Dr.” Stick-It-To-Ya and when you scroll down to get to the punchline you see an additional claim for damages of 1.4M.  The beads of sweat form on your brow and a few make their way down to drop onto the latest edition of DRI magazine.  By the time you’ve processed this latest move by opposing counsel, you’re halfway through your 4th Diet Coke of the day and you’ve heard the telltale DING! another 16 times.  Do not fret!  We’ve got your back…read on…

1. Introduction

Utilization of a life care plan (“LCP”) in trucking litigation has become a more prevalent tool for plaintiffs to achieve higher settlement and jury verdict values based on theoretical treatment needs. Paul Deutsch and Frederick Raffa introduced the term “life care plan” into the legal literature in 1981 in the publication Damages in Tort Actions, and since the LCP has become an effective means for plaintiff’s attorneys to anchor juries, mediators, and their clients to their inflated valuation of a case. A strong, fact-based attack of the LCP through the discovery deposition of the life care planner is one of the most efficient strategies for lowering the purported damages in a case involving catastrophic injury.

1. Attacking the Life Care Planner’s Credibility

When deposing a life care planner, the credibility of the deponent should be evaluated and questioned based upon: the individual’s certification and experience with creating LCPs, the individual’s retention as a quintessential plaintiff’s expert for hire, the individual’s reliance on the records, and the individual’s interviews with the plaintiff and other witnesses involved in the treatment of plaintiff.

1. Certifications and Experience

Litigators are familiar with the basic research required to attack an expert, however, deposing a life care planner requires a deeper look into the exact credentialing associated with the expert. There are a number of organizations that offer “certification”  in life care planning, however, many times these organizations are a pay-for-play type certification. Highlighting the lack of uniformity and ease of certification can assist in creating doubt in a jury’s mind as to the numerical data being offered  by the life care planner. For example, the International Commission on Health Care Certification (“ICHCC”) requires one-hundred and twenty (120) hours of ” in life care planning or in areas that can be applied to the development of a life care plan or pertain to the service delivery applied to life care planning.”[1] The ICHCC’s certification program is available online and is obtainable in approximately five (5) days, which can be used to suggest to a trier of fact that a LCP is not an industry rooted in reliable data or facts.

1. Review of Available Records and the Interview Process

Establishing an expert’s unfamiliarity with the plaintiff’s claimed medical issues is another beneficial tactic in deposing a life care planner as cases involving catastrophic injuries involve voluminous medical records. Many times a life care planner is directed to specific issues concerning future care of a person by the treating physicians and/or the counsel that retained them. Highlighting an expert’s unfamiliarity with the available records is a quick and effective way to capitalize on the flimsy standards associated with life care planning. Moreover, LCPs are “not developed by a single practitioner, but [are] collaborative in nature and informed by the opinions and insights of members of an individual’s treatment team and other professionals,” and failure to consult with the treating physicians can create serious doubt in regards to the accuracy of the LCP.[2]

1. Quintessential Expert for Hire

A majority of life care planners are routinely retained by either plaintiffs or defendants, and the weight of their testimony can be weaponized against them if researched and implemented. For example, reviewing prior testimony can reveal inconsistencies in the approach of the life care planner in creating and implementing LCPs.[3] Further, the use of prior deposition testimony can reveal the fees associated with the life care planners services as well as the frequency of the expert’s testimony. Analyzing the amount of income a life care planner generates from their expert testimony services can establish a correlation between their testimony offered in the LCP and a financial incentive to inflate LCPs in an effort to secure future employment of their services. The life care planner’s frequent retention by plaintiff’s counsel should be explored in the deposition in an effort to minimize the effect of the LCP in contemplation of future damages in catastrophic injury cases.

III.      Attack Each Element of the Life Care Plan

LCPs are based on the future medical needs of the plaintiff, however, many of the elements included in the plans are speculative and inflated to include unnecessary treatment and  therapies, and recommendations. Each item identified in the LCP should be challenged in the deposition by comparing the records, prior treating physician testimony, and available expert testimony that forms the basis for the recommendations. For example, LCPs involving catastrophic injury require “qualified rehabilitation professionals [to] support plan recommendations regarding areas such as home care, supplies, equipment and transportation.”[4]

A study on life care planning in catastrophic injury cases showed that the supervision/ personal care element of a LCP is the single most expensive recommendation.[5]  Attacking the validity of the recommendation for a personal care assistant can drastically reduce the valuation of a LCP.  The type of supervision recommended as well as the time requirements, level of care required, and the frequency provide a greater insight into the recommendation that an individual with catastrophic injuries needs constant monitoring. For example, is the service of a sitter, certified nursing assistant (“CNA”), or in-home nurse being recommended and why? Sitters and CNAs are substantially cheaper than that of a nurse. Taking the time to explore exactly what is bring recommended in the LCP, item by item, will decrease the overall damages amount of the LCP and will create an alternative anchor number that the defense can better justify in a mediation or trial setting.

Advocate for Reasonable Alternatives

Finally, when deposing a life care planner look for opportunities to introduce a more reasonable alternative to the recommendations contained within the LCP.         An attack of an LCP should clearly advocate for “maintenance offsets to future medical care… when future care includes life necessities which would have been required by the injured individual, pre-tort… such [as] food, clothing, and shelter.”[6] Further, the availability of health insurance has been used to combat inflated LCPs by showing that a plaintiff would not incur the full cost of future medical treatment under the ACA, Medicaid/Medicare or private pay insurance.

Retaining an insurance expert can assist in illustrating that once a plaintiff reaches their deductible under a health insurance policy that the actual cost of annual services is drastically reduced. However, be advised that courts are split as to the admissibility of health insurance on future medical damages under the collateral source rule. Also, offering new medical treatments, therapies, and/ or technologies that assist an individual with a catastrophic injury can provide another basis for challenging an inflated LCP. Suggesting reasonable alternatives during a deposition of a life care planner can elicit desired testimony from a plaintiff’s life care planner that highlights the availability of different, more cost-effective alternatives to the treatment originally recommend under the LCP.

1. Conclusion

A LCP works to anchor a jury to the damage valuations proffered by plaintiff and his or her counsel, and the nature of the injuries involved in trucking litigation often involves the creation of a LCP. A thoughtful attack of a life care planner via discovery deposition can have significant impacts on the damages recovered against a trucking client by challenging the validity of the LCP, the credibility of the life care planner, and the of the spurious nature of the inflated recommendations contained within a plaintiff’s LCP. A good LCP can be beneficial for a plaintiff’s case, however, it can be detrimental when the proper attack is mounted against the life care planner by locking a plaintiff into unreasonably and unnecessary recommendations that evidence a financial incentive to increase the damages.

EPILOGUE

Feeling better, and actually emboldened by the realization that you can turn this newly submitted LCP against the plaintiff through a thoughtful and pointed discovery deposition, you lean back in your chair and take one of the last remaining bites of the taquito you bought from the Shell station on your way in this morning.  You think to yourself as you wipe the processed cheese from your chin, “Oh, yeah…this is going to be fun…”  After all, isn’t that why we do what we do?

DING!

[1]  International Commission Health Care Certifications, ICHCC (2019), https://www.ichcc.org/certified-life-care-planner-clcp.html (last visited Sep 8, 2019).

[2] 9 Damages in Tort Actions § 106.05 (2019).

[3] Thomas J. Hurney, Jr., and Stuart P. Miller, Defending Against Inflated Life Care Plans, IADC Mid-Year Summer Meeting (2016) (available at http://www.iadcmeetings.mobi/assets/1/7/14.1-_Stuart-_Defending_Against_Inflated_Life_Care_Plans.pdf).

[4] 9 Damages in Tort Actions § 106.06 (2019).

[5] Jamie Pomeranz et al., Consensus Among Life Care Planners Regarding Activities to Consider When Recommending Personal Attendant Care Services for Individuals with Spinal Cord Injuries: A Delphi Study, 5 Journal of Life Care Planning 7-22 (2006).

[6] George A. Barrett,  Personal Maintenance Expenditure Offsets in Life Care Valuations, 11 J. Legal Econ. 49, 58 (2001).