Plaintiff counsels use expert life care planners to research, evaluate, and quantify damages; when preparing for trial, they need to know whether their expert reports will stand up to challenge. Defense counsels use expert life care planners to critique and rebut plaintiff plans; they need to know the grounds on which a plan would be vulnerable. This means that all planners must know what constitutes supportable methodology for plan development, including estimating future costs, to withstand challenges in litigation. This article will describe the required elements of a defensible life care plan.
The Current legal Context for Expert Testimony
The litigation process is intended to lead to the positive resolution of social inequities. In civil tort actions, most often the only “remedy” available is monetary compensation. This increases the importance of an accurate, thorough, and correctly valued life care plan of an injured party submitted to the court as expert testimony to achieve social and economic equity.
The foundation for admission of expert testimony in some states is based on standards set forth in Frye v. United States.2 These standards generally allowed experts, including rehabilitation, planning, nursing, medicine, economics or vocational experts, to give relevant testimony as long as they had the appropriate qualifications, i.e., “training,” “background,” and “experience.” Jurors, having no information about how an expert drew conclusions, were often left to rely on an expert’s apparent personal credibility or appeal and the expert’s own statements in response to brief qualifying questions from the attorney, which might not have touched on actual relevant experience.
The precedent-setting Daubert v. Merrell Dow3 and Kumho Tire Co. v. Carmichael4 cases at the federal level changed that.
Daubert formally replaced Frye’s “general acceptance” standard with an all-encompassing requirement for scientific validity, thus:
Methods that underlie the expert’s evidence are now examined. If conclusions presented by experts are speculative, based on untested assumptions, subjective belief, or assertions, that testimony is less likely to be admitted.5
Kumho extended the Daubert standard to expert testimony that was not scientific in nature. Justice Breyer, clarifying the Daubert gatekeeping function in Kumho, said, “Rule 702 [of the Federal Rules of Evidence, pertaining to testimony of expert witnesses] does not distinguish between ‘scientific’ knowledge and ‘technical’ and ‘other specialized’ knowledge, but makes it clear that any such knowledge might be the subject of expert testimony. It is the Rule’s word ‘knowledge’ not the words (like scientific) that modify that word, that establishes a standard of evidentiary reliability.”6 Therefore, standards of evidentiary reliability are now equally applied to “scientific knowledge” and “technical and specialized knowledge.” The basis of an expert’s opinion is admissible if:
1. The means employed can and have been tested.
2. Established standards exist that control its use, i.e., error rates are known.
3. It has been subject to peer review and publication, to aid in determining flaws in the methods employed.
This is generally accepted in the technical community. Some states still use Frye for expert testimony standards; however, they generally have moved to include requirements for testimony regarding supportive scientific methodology, sometimes colloquially characterized as “Frye-Plus.”
Excluding Testimony on Methodological Grounds
The “good grounds” criterion placed a greater emphasis on examinations of an expert’s experience as an acceptable surrogate for scientific proof of reliability. Previously, courts accepted testimony of rehabilitation and other non-physician experts who outlined future services needed, costs, and frequency. Since Daubert and Kumho, however, the courts rule on whether a testifying expert possesses the experience and underlying licensure necessary to prescribe both medical and non-medical services from backgrounds of medicine, vocational rehabilitation, nursing, and counseling.
Assertions of expertise can be ruled inadmissible when courts conclude that nothing in the non- medical expert’s background would qualify the expert to recommend, for example, specific surgical or medical procedures. This ruling first occurred in Laura Palmer vs. Ford Motor Company.7 A vocational expert provided opinions on future medical services and care based solely on his (faulty) interpretation of the medical records. The court ruled that he was unqualified to offer such opinions, writing that the testimony was insufficient, and that a rehabilitation counselor was not qualified to opine on prognosis or prescribe treatment. Further, the court noted that the recommendations were not supported by available medical and other records. This is important because each individual line item in a life care plan is subject to this scrutiny; any that is found to lack foundation as defined by Rule 702 will be excluded, and the funds provided for any excluded item(s) will be subtracted from the requested damages.
In another case, Kelly Darbonne Cormier vs. T.H.E. Insurance Company,8 significant aspects of future damages were excluded because the court concluded that expert testimony was based on “conjecture and speculation and not supported by the evidence:”
To avoid issues on appeal, a physician’s opinion must be present and held to a “reasonable degree of medical certainty,” that the plaintiff will, more likely than not, need the future medical care in a life care plan, and that further, the cost of every item in the life care plan can be substantiated and is reasonable.9
Experts risk having testimony excluded on failure to achieve “good grounds” if they fail to base their conclusions on scientific methods and procedures, rather than on subjective belief, assertion, or unsupported speculation. In cases involving scientific testimony, the expert must substantiate scientific validity.
In Patti Kinnaman vs. Ford Motor Company10 the plaintiff retained a vocational expert to provide answers to two questions: (1) was the plaintiff substantially limited in the major life activities of working because of tenosynovitis in both wrists and subsequent residual limitations; and (2) were there jobs the plaintiff could have performed if the defendant provided the plaintiff with modified work conditions or equipment? The expert, in part, relied on results obtained from a national computer database, and stated that such reliance was an acceptable method in the field, but admitted no awareness of any literature that supported her methodology. In determining that her testimony was inadmissible, the court concluded that the plaintiff did not meet the burden in establishing the reliability of opinions offered by her expert. The methodology used by the expert was subject to question in four respects: (1) no evidence was offered that the labor market analysis offered had been tested; (2) no evidence was offered that the theory or technique by the expert had been subject to peer review; (3) nothing in the record showed the known or knowable rate of error; and (4) no independent evidence was offered by the expert to substantiate the testimony, although the expert was judged capable to provide this evidence. The expert could not explain the characteristics of the database on which she had relied.
In Carmelita Elcock vs. Kmart Corporation,11 the plaintiff’s vocational expert relied upon a well-known database developed by Vocational Economics, Inc.; the plaintiff’s economist then relied upon that opinion to project an estimate of future lost earnings. The court ruled that despite sufficient evidence of damages, the economic loss portion of the award should be stricken and a new trial granted due to deficiencies in the methods and analytical processes used by both experts. The court opined that combining two widely used and acceptable methods for estimating and establishing vocational disability was subjective, arbitrary, idiosyncratic, illogical, and unreproducible, and, therefore, unreliable. The expert’s testimony also failed a Daubert challenge because the methods used conformed to no known standards of vocational assessment, could not be proven to be used by other experts, and was not referenced in vocational rehabilitation literature.
Further, the Court excluded the forensic economist’s opinion. He presented the plaintiff as 100 percent disabled despite the vocational expert’s report noting only partial disability. The economist inflated the plaintiff’s annual earnings despite evidence to the contrary, another reason to exclude due to inadequate foundation. The court viewed this testimony as empirical assumptions unsupported by the record, depending upon fictional or random data.
The Court also reviewed Rule 703, which excludes testimony when experts unreasonably rely upon speculative data or data not introduced into evidence. The Court additionally referenced Article IV of the Rules of Evidence, Rule 402, in which testimony is admitted if it is “relevant evidence” defined in Rule 401 as “evidence having any tendency” to make “more probable or less probable” the existence “of any fact that is of consequence to the determination of the action.” Under Rule 402, testimony on method reliability “can be deemed relevant only insofar as a jury can usefully apply that methodology to the specific facts of a particular plaintiff’s case.”
Finally, the Court referenced Rule 403, concluding that, since an expert’s imprimatur carries great weight with a lay jury, permitting witnesses to offer opinions unsupported by sufficient factual foundation increases the risk of misleading the jury and confusing the issues.12
Damages experts must demonstrate knowledge and understanding of:
- The purpose of long-term planning outside of litigation;
- The client-based and service systems outcomes associated with long-term planning models used outside of litigation for the last 45 years;
- Appropriate methods for investigating and collecting information;
- The critical significance of interdisciplinary collaboration; and
- Attributes of documented and well-researched plan.
Reviewing a Life Care Plan
Many professional organizations have published methods and frameworks for disability appraisal to meet the demands for standards and court requirements for methodological rigor, including the Case Management Society of America;13 International Association of Life Care Planners;14 American Rehabilitation Economics Association;15 American Association of Legal Nurse Consultants;16 the International Commission on Health Care Certification;17 American Nursing Association;18 and the American Association of Nurse Life Care Planners.19 Private sector entities also have standards frameworks to help their members develop and document professional competence, such as the National Association of Social Work, Standards for Case Management 2000.20 Anyone reviewing a plan will find the relevant standards essential.
Evaluating a life care plan means analyzing its methodological underpinnings. It does not seek to affirm conclusions drawn, but examines the plan’s methods and processes for accuracy and adequacy. Both plaintiff and defense should use this general framework to evaluate plan content:
- Knowledge of and applying professional standards;
- Knowledge of the literature and appropriate theories, standards, and techniques;
- Accepted analytical methods and use of multiple analyses; distinguishing between generally recognized and rarely-accepted methods and procedures; using multiple analytic methods to develop mutually supportive evidence from which to derive conclusions; and identify eccentric facts;
- Reconciling differences; considering conclusions from multiple methods and reconciling alternatives;
- Disclosing and testing analytic assumptions, variables, and conclusions; disclosing analytic assumptions and variables; identifying, justifying, and quantifying the most important ones; testing for reasonableness; and
- Peer review to identify errors in logic, methods, and assumptions.21
Life care planning experts must now show that they understand basic principles and the foundation for long-term planning to obtain access to services and outcomes. Courts can only evaluate testimony by comparing it to standard frameworks and adherence to scientific merit. Therefore, professional organization standards and quality assurance guidelines provide testifying experts with self-evaluation criteria:
- An agreed-upon framework explaining the essential constituents of long-term planning;
- Methods of specifying outcomes; and
- Evidence indicating adherence to scientific methods of inquiry during plan development.22
Reviewing Life Care Planning Decisions
Conclusions and recommendations in a long-term plan spring from the planner’s decisions about how to collect, interpret, and write about a disabled person’s medical, educational, vocational and technological wants and needs.
An opposing planner, either plaintiff or defense, cannot reconstruct exactly how another acted to develop a plan and its conclusions, but is able to infer the planner’s reasoning based on evidence in the plan itself. If this “evidence” includes untested assumptions, conjecture, suppositions, or assertions so vague that a court cannot determine the planner’s reasoning, a report risks exclusion.23
Opposing experts can expect to be asked to form opinions on an expert’s methods regarding the science, or lack of it, in the report, by answering the following:
1. What are the planner’s assumptions about the injured person?
2. How did the planner attempt to refute or confirm any assumptions?
3. Were the planner’s opinions about needs valid? If not, why not?
4. Did the planner rely on subjective or unreliable data collection and planning methods? If not, what was omitted?
5. Was the planner’s work comprehensive? If not, what were the consequences?
6. Did the planner use good methods and processes as a reasonable foundation for opinions?
7. Did the planner accurately represent the person’s needs?
8. Did planning deficiencies undercut the planner’s ability to form valid and reliable conclusions about the needs of the person for whom the plan was designed?
9. Are calculations accurate? If not, what is the cumulative effect of an inaccurate calculation over life expectancy?24
Disability is not one-dimensional. Plans must reflect that individuals with disabilities have unique functional levels of independence or adjustment on a continuum ranging from chronic need for assistance or supervision to considerable evidence of and potential for self-help and community independence. Functional areas can be affected by disability, i.e., speech, hearing, mobility, cognition, and vision; the extent to which individuals can advocate on their own behalf may vary. Environmental and agency service opportunities are not universally available. Highly specialized services, such as assistive technology or architectural modifications for access, can promote independence by producing speech, facilitating mobility, enhancing hearing, or compensating for low or no vision. A court can exclude a life care plan for failing to individualize to the person’s unique needs; this is most often done when the planner’s methodology is shown not to be based on an individual assessment, as in Elcock, above.
Chronic Disability and Lifetime Supports
A proper life care plan evaluation must determine how well a planner has accounted for barriers and constraints. Someone with severe or enduring disabilities needs an organized system of supportive resources to support continued independence and residence in the community. Therefore, the life care planner must comprehensively identify and examine all life needs. Sometimes the planner’s specialty or personal preferences do not predispose to comprehensive assessment. A resulting plan can miss recognizing needs during the life care planning process – and they remain unrecognized. Needs cannot be fully met with plans developed on an insufficient knowledge base.
The service structure of most service agencies can compound an end-user’s problems. When only narrow planning is offered by a community agency, "add-ons" to direct services are typically time-limited, highly focused, and organized around a specific area of expertise. This presents a particular constraint to someone with significant and multiple disabilities who needs a wide range of rehabilitation and medical services. The average person is likely largely unfamiliar with these. Often, individuals with disabilities and family members must cross boundaries, service requirements, time frames, and policies of many types of agencies, dealing with many providers.
It is not unusual for a person with significant disability to require five to six separate types of medical evaluations and monitoring; two to three types of specialty therapies or intervention; assistance in entering and exiting a residence or provider office; architectural modifications for safe home, transportation, and employment access; a daily medication regimen; daily needs for catheterization by another person; administration of a daily bowel program by still another; and assistance to dress, eat, bathe, and transfer -- the most basic and personal activities of daily living.
The prescient planner must know when shortcomings in resource availability are likely to occur and build in safeguards to ensure that service delivery focuses on the individual’s needs. Consider common characteristics of most persons with chronic disability. They:
1. Have had or will have sustained contact with medical and rehabilitative care.
2. Have disabilities not usually remediable by acute short-term treatment.
3. Have diminished capacity to work in regular employment and/or will require adaptations to return to employment.
4. Have difficulty completing activities of daily living.
5. Rarely seek out and enjoy leisure time activities due to the restrictiveness with which these activities are organized.
6. Have relations with others that may be strained by what others perceive as extreme dependency.
7. Lack self-confidence and self-esteem.
8. May have life-long need for acute short-term medical treatment.
9. Frequently lack skills and abilities needed to seek help and will require long-term guidance to advocate for their own needs (e.g., from the NationaI Institute of Mental Health; Office of Health and Human Services; Department of Education; Division of Aging; National Council on Developmental Disabilities).
10. Cannot capably identify all of the resources they need or when they will need them. They also lack the knowledge to identify the potential risks, dangers or negative outcomes of resources used in the past or recommended for them.
11. Lack information about what services they need as a function of their disability, where to locate and secure needed medical, surgical, technological, and clinical services and resources.
12. Will frequently terminate services prematurely or have interactions that result in conflict with providers due to lack of information on purpose, use and outcome of needed services.
13. Lack the ability to knowledgeably direct their own care when performed by another.
Much outcome research completed between 1975 and 2000 demonstrated gains in access to service, increased tenure in community-based settings, reductions in emergency hospitalizations, and gains in quality of life when a person’s needs were met using strategies consistently linking them to services they need.25 These classic findings have held true with the passage of time.
The life care plan should be able to assist the individual to:
1. Locate sources for additional services;
2. Identify when additional services are needed;
3. Secure resources as they are required;
4. Retain resources for as long as is beneficial.26
Finally, without strategies for implementation, a plan has no integrity and will fail after litigation has concluded. Without attention to barriers, a plan can have little true reliability, validity, relevance and consistency. This failure will reveal a key deficit in how an expert planner identifies, individualizes, and interprets information about the person.
Plans should reflect the real-life conditions that will exist long after litigation is over. Realistic life care planning requires identifiable processes that will connect individuals and family members to the full spectrum of services needed.
Fails in Life Care Plans
Planners often find themselves between the Scylla of externally imposed time constraints and the Charybdis of requirements for extensive plan development. The following inevitably occur:
1. Planning processes are often arbitrary.
2. Life care plans and service recommendations are developed in isolation with little foundation.
3. There is no collaboration with service providers, reviewing important medical or therapeutic information or prior service records to show how the person has responded to services in the past and will likely do in the future.
4. The planner truncated or skipped home visits and face-to-face contact with providers and others with useful first-hand information.
5. There is incomplete or absent evidence-based research to evaluate potential consumer risks from service components.
6. There were few efforts to require medical specialists to justify the resources they have recommended.
7. The planner fails to challenge service recommendations made by others; they only meet technical requisites required for foundation.
8. There is no effort to determine if a physician or other provider possessed the training and experience required to knowledgeably recommend the service being promoted; customer perspectives and future safety are ignored.
9. National databases with information regarding probability for employment, educational success, or the prevalence of potential medical complications aren’t consulted.
10. Information on local services and resources and costs is inadequate or inaccurate.
These failures result in a life care plan that contains little information on previous successes and failures, basic safety considerations, and necessary problem-solving supports and services.
The life care planner should assist the individual and family to learn more about all resources and supports they will need and how to get them. Planning processes which provide only for cursory or haphazard collection of information about consumer and family members’ needs, values, and preferences betray this intent, as do resources prescribed which fail to be evidence-based.
Life care plans must emphasize both consumer-based and provider-based outcomes to assure that all service needs are identified, all factors affecting access to services are addressed, and all factors that will constrain service continuation are a component of plan resources. Otherwise, the plan is demonstrably insufficient, inadequate and incomplete, having ignored some services and commodities needed by the consumer.
Attributes of Defensible Life Care Plans
- Review of all prior services and treatment
- Completed clinical interviews with family members and current treating team
- Evaluated equipment, residential, leisure, employment, and technology needs
- Evaluated performance of activities of daily living
- Reflects specific, unique obstacles, circumstances and needs
- Shows evidence of extensive research into details of the individual’s life
- Is rich in consumer-, family-, provider-, and community-based information relating solely to this person
- Include evidence of collaboration with service providers, including background and training
- Address multidisciplinary perspectives, skills, and expertise
- Include multidisciplinary team’s assessment of client strengths, problems, service needs, and future complications
- Promote decreased subjectivity
- Data collection, planner methods, and plan formation are defined, clear, logical and reproducible
- Conclusions are generalizable, not idiosyncratic to the planner
- Process is standardized and consistent
- Has generalized and specialized knowledge in disciplines and subject areas re the disability and the client’s needs and preferences
- Provides evidence of ongoing continuing education in the field
- Includes architecture, characteristics, needs, complications, and outcomes associated with different disabilities, disability rights, economics, law, medicine, nursing, social work, specialized therapies, technology, and social policy
- Includes evidence of careful research in primary and secondary databases, relevant literature reviews, and appropriate professional guidelines for care
- Recommends resource(s) to overcome identified deficiencies in consumer and existing resource network
- Sets specific objectives for service providers and the individual
- Defines strategies for continual service access
- Contains time frames for plan re-evaluation
- Is true and grounded
- Contains historical information, observations, and conclusions
- Is based on most current and recent data, long-term functional needs, services and costs
- Conforms to recommendations by treating providers
- Documents that resources have a logical relationship to identified problems
- Includes peer-reviewed research on service/outcomes, potential benefits/risks negative side-effects
Life care plans are an increasingly important aspect of personal injury cases, but to be upheld in court they must meet various criteria and be appropriately structured to be admissible. Plaintiff and defense counsel should be aware of these criteria when deciding on a plan’s validity and vulnerability to challenge.