The Need for Transparency in Life Care Plans
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.