Life Care Plans have become a popular way to present alleged damages in personal injury cases and cases involving claims of injury in medical negligence cases. Too frequently, however, life care plans fail the “transparency test,” placing the admissibility of the expert’s opinion in jeopardy. In turn, this can expose the life care planner and attorney who retains him to potential claims of negligence if a court excludes the expert.
Simply stated, a Life Care Plan sets forth the economic value of the subject’s future medical and non-medical care needs arising from the actions of the tortfeasor. The forensic economist in the case will then take the Life Care Plan and grow the costs documented therein over the term and reduce these costs to present value and presentation to the jury.
Life care plans have been utilized in such cases for over 35 years since the professional literature established the definition of a Life Care Plan. The presentation of damages in civil cases typically requires expert testimony. In this regard, the admissibility of expert testimony is the responsibility of the court in their role as gatekeeper. As more and more states have accepted what is referred to as the Daubert standard, the admissibility bar has been raised and with it, the risks to the life care planner and their retaining attorney.
In our experience, too many life care planners attempt to offer life care plans that do not comply with the most important prong of the Daubert test; reliability. Simply stated, a Life Care Plan needs to be transparent and allow for reproducibility. This means that the Life Care Plan must disclose the basis for its content, both in terms of foundation for the recommendation and the charges/costs related thereto. This is where most life care planners fail and, by doing so, expose themselves and their retaining attorney to claims for damages should the court limit their opinions or strike them altogether.
As an example, a Life Care Plan is not reliable if another qualified life care planner cannot replicate its content. To do so, the author must disclose the medical or non-medical expert making the recommendation, how that recommendation was conveyed and the methodology relied upon to establish the presented costs/charges. This means full disclosure of the physician, therapist or other expert making the recommendation and data source used for the charge/cost associated with that recommendation included in the Life Care Plan.
Many life care planners simply present charges/costs in their Life Care Plan without any data sources listed to support the present charge/cost. Some may prefer to rely on such language as “equipment catalogs” or “medical records.” Unfortunately, this is not sufficient and fails to provide an individual, case-specific roadmap that allows for a reliable means of verifying the content of a Life Care Plan.
The failure to make such disclosure is also inconsistent with the code of ethics and standards of practice for life care planners as established by the International Academy of Life Care Planners and the International Commission on Health Care Certification, the entity that awards the Certified Life Care Planner (CLCP) credential.
Best practice in transparency was also a core focus of the 2015 Life Care Planning Summit sponsored by the International Academy of Life Care Planners section of the International Association of Rehabilitation Professionals (IARP), and other professional associations.
Consensus statement 102 added in 2015 to the existing consensus statements from prior Summits noted,
“Life Care Planners shall identify the sources of their recommendations.”
Prior to this, Consensus statement 66 noted,
“Life Care Plans shall include an annotated list of requested and reviewed data/sources.”
Consensus Statement 98 noted,
“Best practices for identifying costs in Life Care Plans include: Verifiable data from appropriately referenced sources.”
In contrast with these best practice statements, too many life care planners try to play “hide the ball” and fail to disclose the data sources they relied on to prepare their Life Care Plan. Some life care planners like to say, “take my deposition (if you want to learn the basis for my opinion).” In our experience, courts frown on such tactics. Should an attorney be put in the position of going into a deposition “blind” without knowing the basis for the opinions offered in their Life Care Plan? Failure to fully disclose data sources relied on for Life Care Plan development places the expert attorney and their client at great risk.
VDI experts fully disclose all data sources used and the foundation for the content of recommendations in any Life Care Plan they prepare. In short, a VDI Life Care Plan is a totally transparent document that conforms to industry best practices, codes of ethics and standards of practice and complies with existing case law.
You know what they are. We know how to evaluate them:
* Past lost income;
* Future lost earning capacity;
* Past medical bills;
* Future medical and non-medical care expenses;
* Lost ability to perform household services;
* Earning capacity evaluations;
* Life Care Plans.
After over 10,000 cases and more than 30 years in venues all over the United States and Canada, working equally for plaintiff and defense attorneys over this time and consulting and testifying from coast-to-coast, we know our way around the litigation arena. We love working on cases in federal court and where the Daubert/Kumho standard for expert witness testimony is required. Why? Because we know what it takes to offer expert testimony that is admissible and recognize what is not.
There is a reason why our experts are called on to evaluate the most complex, difficult and contentious cases imaginable. Why? We know our stuff. We know how to develop a damages case and destroy one when an expert has taken the “ipse dixit” approach and has no foundation for their opinions.
Our team of vocational rehabilitation and life care planning experts are published. We have held national offices with professional associations. We work cooperatively with other forensic economic and medical experts to fully and properly evaluate damages in a personal injury, medical negligence and labor cases. We are experienced. And we know what we are doing. As one of the largest firms in the country specializing in comprehensive damages assessment, our team has the ability to handle the “RUSH” case. To us, “RUSH” is not a “four-letter word.”
We love to talk cases and there is never a fee for initial consultation/discussion.
What is a Life Care Plan?
Stated simply, a Life Care Plan is a document that will set forth an individual’s future medical and non-medical care needs arising from the event in question. The following must be considered when doing a Life Care Plan:
- A life care planner should be certified. There are two certifications in Life Care Planning that presently exist. The Certified Life Care Planner (CLCP) is awarded by the International Commission on Healthcare Certification (ICHCC). VDI has a number of staff members who hold this credential. The Certified Nurse Life Care Planner (CNLCP) credential is awarded by the Certified Nurse Life Care Planner Certification Board.
- Life Care Planning has historically been recognized as a multi-disciplinary area of practice. Certified Life Care Planners can be rehabilitation experts, registered nurses, occupational therapists, physical therapists, psychologists, and even medical doctors. Each specific area of practice can be important in developing a Life Care Plan.
- It is critical for any life care planner to obtain foundation for the recommended items in the Life Care Plan. Just because one has a credential in life care planning does not mean that they are qualified to make case-specific recommendations that fall outside of their professional scope of practice. For instance, a registered nurse cannot recommend a specific course of medical treatment; only a licensed physician can do that. A rehabilitation counselor cannot recommend a specific course of physical therapy that someone may require for treatment of their injuries. Only a licensed physical therapist or physician can do that. A rehabilitation counselor, however, can provide foundation for mental health treatment if following their assessment of the plaintiff, they believe this is required.
- Understanding the individual scope of practice and then interfacing with other licensed, allied healthcare professionals, will guarantee the credibility of the Life Care Plan as well as its admissibility in court.
- There are recognized standards of practice that must be applied to every case where a Life Care Plan is developed. VDI’s life care planning experts know this.
- Life Care Plans should be done in any case where future medical and non-medical care is being recommended. It is a common belief that a Life Care Plan should only be done in the case involving “catastrophic” injury; this is not true. Interface with a medical expert can identify the need for future medical and non-medical care arising from claimed injuries. This may take the form of a single surgical procedure, other treatment interventions such as injections, pain management modalities, therapies and/or medications. There can be considerable costs associated with any and all of these items.
- VDI Life Care Planners know how to set forth these future care needs, quantify the value of them and interface with necessary medical and non-medical experts to support them.
Contact Vocational Diagnostics if you are in need of a Life Care Plan.
Claims involving personal injury will usually include claims for lost income and lost (diminished) earning capacity. Lost income is commonly defined as income lost from the date of the event continuing through the date that the evaluation is done or, in some jurisdictions, the date of Trial. Lost (diminished) earning capacity considers these economic losses going forward to the end of ones work life expectancy.
Are lost wages the same as lost (diminished) earning capacity?
No! Lost earnings (income) and earning capacity are not the same. Lost (diminished) earnings (also referred to as lost income) are typically individual-specific and consider a job at which a plaintiff was employed at the time of the event in question. An example might be a truck driver working for “XYZ Trucking Company” where the truck driver was making $30,000 per year. If the Plaintiff was off work due to his injuries for three months, lost earning (income) might appear to be easily calculated.
His lost earning capacity , however, might be a different story. The only expert qualified to determine whether a plaintiff has sustained a loss in earning capacity is a vocational (rehabilitation) expert.
All people who work in the competitive labor market require skills in order to perform the essential functions of jobs for which they are qualified. The vocational (rehabilitation) expert is the only one who can determine if ones skill set allows them to transfer to another job that might pay comparable wages. If not, the individual might then have a loss of earning capacity . Whether or not this loss might continue over ones work life expectancy is an individual-specific determination that only a vocational (rehabilitation) expert can make. In short, the vocational (rehabilitation) expert is the only one qualified to determine what other jobs someone might be able to perform considering the medical evidence and what these jobs pay.
Lost (diminished) earning capacity may be mitigated through occupational retraining where one can acquire additional skills to be used in a return to work. In many cases, with a short term investment in training that might take someone out of the work force for a defined period of time, the additional (new) skills acquired could result in new opportunities and higher earning power.
The vocational (rehabilitation) experts at VDI can evaluate these issues.
A forensic economist, as valuable as they are to a case with their number crunching ability, cannot determine whether someone has had a loss of earning capacity . VDI’s vocational (rehabilitation) experts interface with forensic economists in almost every case in which we are retained. Each expert brings to the table their specific expertise in evaluating damages in this critical area.
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