Trial Magazine

Given the often high value of estimated future medical expenses, many defense attorneys view life care plans as “unrealistic and exorbitant” and try to ­undermine them at trial.¹ To protect your life care plan, you must anticipate defense counsel’s means of attack and strategically consider whether to retain a life care planner at all.

Your first fight will focus on the life care planner's qualifications and methodology.

Your first fight will focus on the life care planner’s qualifications and methodology. Your planner must have sufficient credentials to qualify as an expert in life care planning² and must use accepted methodology to ensure that his or her opinion will be deemed scientifically reliable.³

Life care plans typically rely on at least two expert opinions. First, that the suggested future medical treatments are reasonable and necessary. Second, that the estimated costs of those treatments are appropriate.⁴ For the estimated future medical costs to be completely admissible, both opinions will require sufficient credentialing and appropriate methodology. Your planner may not be an expert in all fields of medicine for which your client will have future needs, so he or she will be unable to testify about the proposed future treatment’s reasonableness and necessity without sufficient outside medical support. In such cases, all of your planner’s opinions must be supported by a physiatrist or treating physician who can testify that the plan’s expenditures are, in fact, reasonable and necessary.⁵

It is vital that your expert has properly credentialed support for his or her opinions—courts have routinely excluded medical experts’ opinions that stray beyond the scope of their expertise. In one recent case, the Pennsylvania Superior Court upheld a trial court’s limitation of an orthopedic surgeon’s expert testimony.⁶

The plaintiff had proffered the surgeon to testify as to the reasonableness and necessity of a rhizotomy, a neurosurgical procedure that destroys problematic spinal nerves to prevent pain signals in the back from being transmitted to the brain. Despite the expert’s extensive orthopedic and surgical background, the court found that he lacked sufficient specialized knowledge about rhizotomies because he did not perform them.⁷ The court excluded his testimony on that subject, which devastated the plaintiff’s case.⁸

Your planner’s methodology for calculating costs must be sound and demonstrably reliable and one that is accepted in the life care planning field. It should reference medical costs typical in your jurisdiction—and it is critical that the planner uses the same methodology whether doing plaintiff or defense work. Additionally, your planner should be prepared to honestly testify that he or she has assisted patients in getting medical services, either by approving the services on behalf of medical insurers or health plans or as a patient advocate in a health system.⁹ Defense counsel will have investigated any of your life care planner’s prior opinions or testimony.

Defeat Common Defenses

Even if your planner is well-credentialed and used sound methodology, opposing counsel will find any available means to chip away at total estimated future costs. As a result, your life care planner’s review must include all potentially relevant deposition transcripts—particularly for people who were questioned about your client’s recovery. The depositions are fertile ground for cross-examination, especially if a friend’s or family member’s testimony undermines the planner’s opinions about your client’s current condition or need for future treatment.

Defense counsel also may obtain a rebuttal life care plan or have a medical expert comment on yours. If this happens, have your life care planner review the rebuttal report and, if necessary, supplement his or her own report to address any points of disagreement.

Defense counsel have turned the Patient Protection and Affordable Care Act (ACA) into new ammunition in their fight against future medical care costs. They argue that future medical damages should be capped based on the ACA’s coverage requirements and its statutory out-of-pocket maximums ($6,850 per year for individuals).¹⁰ And they further suggest that courts should not allow plaintiffs to present the uninsured, out-of-pocket costs of a procedure, arguing that doing so condones noncompliance with federal law.

You can rebut these assertions in a few ways. First, given the current political climate, the long-term viability and substance of the ACA in its current form is not guaranteed.¹¹ Second, the ACA does not mandate coverage—it merely taxes those who do not obtain it. Finally, in applicable states, attempting to mitigate damages via the ACA runs afoul of the collateral source rule. Also called the collateral benefit rule, the collateral source rule is “the doctrine that if an injured party receives compensation for its injuries from a source independent of the tortfeasor, the payment should not be deducted from the damages that the tortfeasor must pay. Insurance proceeds are the most common collateral source.”¹²

Recently, for example, the Western­ District of Pennsylvania primarily relied on the collateral source rule to ­preclude the admission of ACA evidence in a medical negligence case.¹³ Defense counsel argued that the ACA itself is not insurance, so it should not be precluded under the rule. But the court disagreed, ­noting that “while the ACA is not health insurance, it would still seem to be the case that health insurance governed by, and obtained under the ACA, is still health insurance.”¹⁴ The law surrounding ACA evidence is still in flux, but courts across the country have trended toward its exclusion at trial.15 But barring a ­complete repeal, defense counsel will continue to target the ACA to reduce future medical costs.

Remember, not all cases will justify the expenditure of a separate life care plan and expert to support it. When your client’s future medical care is limited to uncomplicated treatment—such as rehabilitation, physical therapy, follow-up visits, monitoring, and minor prescriptions—consider relying on your treating physician or medical expert rather than a life care planner for testimony. 

David L. Kwass is a partner and Elizabeth A. Bailey is an associate at Saltz, Mongeluzzi, Barrett & Bendesky in Philadelphia. They can be reached at dkwass@smbb.com and ebailey@smbb.com.

Notes

1. Stuart P. Miller & Thomas J. Hurney Jr., Defending Against Inflated Life Care Plans, Int’l Ass’n of Def. Counsel Midyear Meeting (2016) (quoting Gail C. Jenkins & Angela M. Kneeland, Defense Life Care Experts 83, DRI Preeminent Lawyers Seminar (2007)). 
2. See generally Fed. R. Evid. 702. To ensure your life care planner is qualified to provide expert testimony, he or she must have a background, education, or training in life care planning, or all three. Additionally, as explained in more detail infra, if possible, your life care planner should have expertise in relevant fields of medicine. 
3. The standard to determine what constitutes acceptable scientific methodology differs among jurisdictions but typically is derived from Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993) or Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Federal courts apply Daubert and have found that it applies to life care planners. See, e.g., Tyus v. Urban Search Mgmt., 102 F.3d 256 (7th Cir. 1996) (finding that Daubert applies to social science experts). It is important to thoroughly understand your jurisdiction’s requirements. 
4. Norwest Bank, N.A. v. KMart Corp., 1997 WL 33479072 (N.D. Ind. Jan. 29, 1997). 
5. Id. Even when planners can be qualified to discuss the reasonableness and necessity of treatment, it often is still advisable to have a physiatrist available to support the necessity of the life care plan’s expenditures. 
6. Lingham v. Faison, 2017 WL 111227 (Pa. Super. Ct. Jan. 11, 2017) (nonprecedential).
7. Id. at *4–5.
8. Id. at *5.
9. Generally, your planner should have experience in the development or execution of long-term medical treatment plans for patients, or both. For example, your planner’s background could involve medical case management, discharge planning in hospitals, or insurance benefits coordination. 
10. This discussion will still be relevant if the ACA’s potential replacement contains an insurance coverage requirement and out-of-pocket medical bill cap.
11. See, e.g., Pannacciulli v. Beloff, 2016 WL 360663 (N.J. Super. Ct. L. Div. Jan. 22, 2016) (denying the defendant’s motion to limit future medical expenses because, among other things, “[plaintiff’s] right to receive such benefits is likely subject to policy changes, as Congress has sought to repeal and/or undermine the ACA over fifty times.”).
12. Black’s Law Dictionary 256–57 (Bryan A. Garner ed., 7th ed. 1999). Not all states recognize the collateral source rule, and where it is recognized, it may be statutorily limited in certain types of cases.
13. Welker v. Carnevale, 2017 WL 151638 (W.D. Pa. Jan. 13, 2017).
14. Id. at *2.
15. See, e.g., Cowden v. BNSF Ry. Co., 980 F. Supp. 2d 1106, 1129 (E.D. Mo. 2013) (holding in abeyance the plaintiff’s motion to exclude evidence of the ACA and noting the defendant’s obligation to provide authority demonstrating the ACA “does not constitute a collateral source” if the issue arose at trial); Rogge v. Estes Exp. Lines, 2014 WL 5824766, at *5 (N.D. Ohio Nov. 10, 2014) (granting the plaintiff’s motion to preclude evidence of the ACA); Vaccaro v. Scranton Quincy Hosp. Co., 2016 WL 6248016 (Pa. Ct. Com. Pl. Oct. 24, 2016) (denying the defendant’s motion to permit cross-examination of the plaintiff’s life care planner based on the ACA); Judkins v. Chipotle Mexican Grill, Inc., 2015 WL 9952269 (Fla. Cir. Ct. Sept. 25, 2015) (denying the defendant’s motion to introduce evidence of the ACA’s effect on the plaintiff’s claimed future medical expenses); Garcia v. Jensen, 2016 WL 4070622, at *3 (Tex. Dist. Ct. May 9, 2016) (precluding any statement or argument that the plaintiff should have applied for the ACA).