As the costs within life care plans escalate, medical professional liability (MPL) defendants and their attorneys are fighting back. Through a variety of tactics, defense attorneys are undermining life care plans in a two-pronged effort: first, to secure a not guilty verdict, and second, to contain costs should the jury convict and award damages.
Fortunately, numerous strategies exist to attack lifecare plans in all phases of trial preparation and the trial itself. Some of these approaches can be employed specifically to undercut life care plans themselves, while others are broader strategies that can be applied before and during a trial.
For many years after plaintiff life care plans became popular, the defense bar resisted presenting alternative life care plans in the belief that it undermined their contention that the defendant was not guilty. However, due to the escalating mega verdicts, many defense attorneys became convinced of the need to offer an alternative to sky-high plaintiff life care plans. Defense life care plans also employ life care planners; they rely on the care that the plaintiff is currently receiving and focus on a realistic assessment and projection of future needs.
Within life care plans themselves, attorneys can erode the foundation of life care plans by disputing the financial projections within a life care plan. They can also attack life care plans as inadmissible and unreliable and challenge the life care planner’s expertise. Other strategies likely to resonate with juries include pointing out that medicine is not an exact science, noting that plaintiff’s experts have the benefit of hindsight, and observing that judgment is inexact.
The first part of our two-part series on life care planning focused on the specifics of life care plans, life care planning, the impact of the collateral source rule on life care plans and the specific costs behind life care plan projections. In Part 2, we explore tactics the defense can use to undermine life care plans including the use of defense life care plans, financial projections in life care plans, and specific approaches during written discovery and depositions.
We spoke with five defense attorneys for the second part of this series:
Adam Bobkin,
Partner, Mauro Lilling Naparty LLP, in Woodbury, NY
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Clarissa Collier,
Partner, Wheeler Trigg O’Donnell LLP, Denver, CO
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Thomas Hurney, Jr.,
Member, Jackson Kelly PLLC, Charleston, WV
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Cecilie Loidolt,
Partner, Wheeler Trigg O’Donnell, in Minneapolis, MN
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Kat Todd,
Partner, J Supple Law, P.C., San Rafael, CA
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“Going through the plaintiff life care plan line by line and establishing the foundation for each item is a fundamental part of defense in MPL cases,” Collier said. “Defense attorneys need to explore each of the items within the life care during depositions and expert discovery. Life care planners may come up with their own recommendations that are not tied to anything said by a treating professional. And if the life care planner is a social worker or a nurse, for example, they’re not qualified to make diagnoses. It’s about being meticulous and willing to do the work even if it isn’t as exciting as other parts of the case.”
Strategies involving attacks on life care planning and life care planners can be effective before and during a trial. “Life care planning is not really a science,” Bobkin noted. “There’s a wealth of information defense attorneys can use to question life care planners or attack the reliability of what they do, what their process is, and whether that process is reliable. Life care plans and life care planners themselves demonstrate in their journals and their publications that there is no consensus about how to create a life care plan.”
Undermining Life Care Plans with Broader Approaches
In medical malpractice trials, plaintiff’s attorneys use anchoring to desensitize a jury to a large financial damages award so that the number they offer will serve as a baseline for jury damage awards, should they reach a guilty verdict. Defense attorneys are co-opting that practice to anchor concepts with the jury as early as possible—even during jury selection—to outmaneuver plaintiff’s attorneys.
“Anchoring is an approach that defense attorneys use to change the language of the case,” said Loidolt. “I immediately counter the ways that plaintiff’s attorneys try to anchor the case. One common tactic they use is to say that the trial is about resolving a dispute between two parties. I highlight the fact that we are here because the plaintiff is suing my client claiming he or she did something wrong that caused a bad outcome, for which they seek an outrageous amount of money. That is not a dispute. It is one hell of an accusation to make against someone.”
Loidolt employs anchoring with the jury while discussing the burden of proof that the plaintiff must meet to receive a verdict for the plaintiff from the jury. “The plaintiff has the burden of proof,” she said. “Before we even talk about damages, the plaintiff must prove there was negligence that caused the bad outcome. I need you to put up a brick wall between the question of whether my client did anything wrong, the harm that the plaintiff alleges, and the financial damages they are seeking.”
Framing the damages award as a much smaller number—tied to proof of liability—is another way to undercut juror buy-in to excessive plaintiff damage award anchoring. Loidolt references much lower numbers like the cost of a middle-income home, because juries can relate to that number much more easily than to $20, $50, or $100 million. “We are not here to award the plaintiff an amount that will take care of their family for years—this is not about creating generational wealth,” she continued. “Instead, if the jury finds for the plaintiff, their job is to compensate for the harm done, not anything else.”
Defense Life Care Plans
The purpose of a defense life care plan is to potentially anchor the jury’s perception of a damages award with a more reasonable number than the costs included in the plaintiff’s life care plan, according to Todd. “The vast majority of time in catastrophic injury cases we have our own team of defense damage experts who weigh in on more reasonable damages numbers even at the time of jury selection,” she said.
For Collier, the role of a defense life care plan is “to keep everyone honest and for leverage in settlement negotiations. If we don’t come up with our own life care plan, we are just stuck with what’s in the plaintiff life care plan. We all hope we can win on standard of care or causation. But if you do get to damages, and you don’t have anything to anchor your damages to, then you are stuck with what the plaintiff says.”
Todd recalled a case that she lost and the jury adopted her life care plan rather than the plaintiff life care plan. “We incorporated a much lower rate of attendant care in the plan, and although we lost, the jury essentially adopted our life care plan,” she added.
“I’m constantly evaluating the damages picture as we are approaching trial and even in trial,” she said. “There are cases where my life care plan is not quite generous enough for a very sympathetic plaintiff. In that case, I may adopt the plaintiff’s life care plan with exception of the attendant care piece, because that is always a very significant expense.”
She adjusts based on jury reaction—both verbal and non-verbal—and gut feelings. “As defense counsel, we need to constantly take the temperature of the parties in the courtroom and discern how we are being perceived and how the damage picture is being perceived,” Todd noted. “There’s a careful balance between wanting to have a fact based, reality based plan while also appearing reasonable.”
Loidolt changes the language of the life care plan on the defense side, calling it a “medical needs plan” to distinguish it from the idea of a life care plan, which sounds like the defense should take care of all aspects of the plaintiff’s life. “The medical needs plan is based on what the plaintiff needs, and we retain experts who are qualified to testify to that,” she said. “We retain experts such as damages counsel who are lawyers who look at life care plans and the jurisdiction where the plaintiff lives. They find out what is available to the plaintiff within that jurisdiction, including what might be available to a child at school under an individualized education plan.”
Collier carefully examines plaintiff life care plans for anomalies that aren’t in line with the plaintiff’s diagnosis. “I recently was evaluating a life care plan for a case and noticed that the life care plan included yearly visits with a neurologist and a neuroradiologist,” she said. “The plaintiff was severely injured with orthopedic injuries, but there were no allegations of a brain injury and no prior medical treatment provided for a traumatic brain injury. I’ve seen many cases like this where someone may very well be severely injured and require some future medical care, so the plaintiff’s lawyer will throw extra things in the life care plan and hopes no one notices.”
Financial Projections in Life Care Plans
Life care planners use total present value in their plans to calculate how much the cost of care will increase over time for the plaintiff’s care. Total present value is usually known as net present value. Net present value is the value of all future cash flows over the entire course of the life care plan discounted to the present, according to the Corporate Finance Institute.
Bobkin noted that there are two main components to the present value of life care plan costs: the inflation rate and the discount rate. The inflation rate focuses on how much costs are likely to rise during the term of the life care plan, while the discount rate is determined by the instrument in which money is assumed to be held before future expenditures. In other words, the discount rate will be different depending on whether the money is invested in a lower interest vehicle such as a money market account or a higher return vehicle, such as stocks or bonds.
“Economists determine present value by using what they call the risk free rate of return,” Bobkin said. “The risk free rate of return is pegged to government bonds, which economists claim eliminates uncertainty from their equation. However, investing in government bonds doesn’t eliminate risk because that investment is subject to inflation and other risks. That’s why diversification exists, which is proven to lower risk and increase potential returns. Rather than economists, we work with investment professionals to harness diversification to obtain a higher discount rate, lower risk, and a reduced present value.”
“Even if I adopted the plaintiff’s life care plan with a ridiculously high life expectancy for a catastrophically injured plaintiff, by using a higher rate of return, I get a much more reasonable present value number, even if I include all the attendant care,” he continued. “I take the plaintiff’s number, which was way up here, and give a number that is down here, which provides a new anchor for the case, showing the jury that what the plaintiff is asking for is clearly unreasonable.”
Hurney agreed, noting that an expert witness who can testify to the ways that damage awards can be invested can show the jury that a more realistic rate of return is reasonable, while knocking down the cost of the life care plan. “Juries understand the time value of money, so the combination of demonstrating that the plan is inflated and pushing back on the methodology of the economist can definitely make an impact,” he said.
Collier consults with both a defense economist and a defense life care planner to ensure that costs are brought to present value and are correct given the geographical area where the plaintiff lives. National databases may not realistically reflect costs where the plaintiff lives. “I had a case where the plaintiff was injured in Washington DC, but she was Italian and after the accident, she returned to Italy, which has universal health care.” Because the plaintiff’s life care planner had based the cost of her alleged future care on the cost of care in Washington DC, and not Italy, the plaintiff was forced to drop her future medical care damages from the case.
Defense Tactics to Challenge Life Care Plans
There are multiple strategies to challenge life care plans before and during a trial. Bobkin noted that there are many ways that life care plans—and the components of life care plans—can be attacked as inadmissible and unreliable. “The only way to do that is to probe those issues in discovery, ask questions during depositions and then use that information to make pre-trial motions,” he said. “Of course, the trial judge may or may not grant those motions. I don’t know what the outcome will be, but I do know that the trial judge won’t grant a motion that isn’t made.”
Here is an overview of strategies practiced by the attorneys we interviewed that can be used at specific points in the litigation process:
Written Discovery. During the written discovery phase, the plaintiff and defense exchange information and evidence through written questions known as interrogatories. They also request, in writing, documents relevant to the case. “The procedural issues that affect life care plans really start with the discovery process,” Bobkin said. “They start with what information is being sought in discovery, the documentary evidence, the medical billing records and the collateral source information.” With that information in hand, you can determine what type of care the plaintiff is receiving, what sources of insurance or other collateral sources they have and who they are receiving care from.
Depositions. Depositions are pre-trial, out-of-court, sworn testimony that gives both sides the opportunity to probe witnesses and parties involved in the MPL case. The testimony is recorded by court reporters, and both sides can use testimony during the trial to establish facts or question witnesses who contradict deposition testimony in a trial.
For Todd, the deposition is an opportunity to determine what the plaintiff’s plans or ideas are about the care that they are receiving in the present and will receive in the future. With this information in hand, she can use that information to craft the defense life care plan and attack the plaintiff life care plan. “For example, if it is a pediatric case, I will ask the parents when I am taking their deposition, what services, equipment, or medications they would like their child to have that they are not receiving,” she said. “I may also ask some of the treating physicians the same question. The purpose behind those questions is to establish the needs and wants from the stakeholders themselves.”
Bobkin agrees, saying, “During deposition, you have the opportunity early on in the case, before a life care plan is even generated, to talk with that plaintiff and ask them questions about their meetings with their doctors and specialists about the care they are going to need in the future. We’ve deposed family members of the plaintiff who will tell us that they don’t want to hire attendants, they will be taking care of the plaintiff themselves.”
Hurney identified the treating physician’s deposition as an opportunity to anchor the care that the physician thinks is reasonable and necessary to treat the injury. “If you take the deposition early before there is a plaintiff’s life care plan, you set up the wall so that during the trial the doctor either sticks to what they said in the deposition or they change their tune,” he said. “I think that’s pretty effective.”
He noted that getting all the plaintiff’s medical records is a must, so that you are familiar with them, you know the treatments, and what’s recommended. “I think it is helpful if you can get prior depositions of the plaintiff’s life care planner, because you might stumble onto someone who’s got a formula.”
A Final Word
As life care plans increase in sophistication—and bottom-line costs—there are many tactics that defense attorneys can use to counter them. Sharing knowledge and successful strategies across the defense bar strengthens the ability of the healthcare system to mitigate the impacts of mega verdicts and large settlements.