In medical professional liability (MPL) litigation, life care plans increasingly drive mega verdicts. Life care plans, which are designed to quantify a plaintiff’s medical condition, care needs, and the cost of the goods and services needed to provide that care, are employed by plaintiff’s attorneys to establish noneconomic damages.
Plaintiff’s attorneys hire life care planners, who are usually either nurses, rehabilitation medicine specialists, or physicians, to create a plan and testify in court about how a specific life care plan will provide the care that a plaintiff needs following an alleged medical malpractice incident. The cost of the plan, which usually includes the actual costs of care, modifications to a home, personal care attendants, and more, is used by the plaintiff’s attorney to anchor economic damages for a jury.
Many states limit noneconomic damages, such as for pain and suffering, to amounts between $250,000 to $2.25 million. Regardless, life care plans are almost universally used by plaintiff’s attorneys to focus attention on the type of care and cost of care needed by plaintiffs and to reinforce that amount with the jury.
In 2024, the 50 largest medical malpractice verdicts averaged $56 million, a 100% increase from 2019, according to claims data from TransRe. Closed claims, which are malpractice claims that are settled outside of court, increased to $858,000 in 2024, doubling from 2017, according to WTW. Defendant hospitals, physicians, and insurers may seek to settle cases to avoid potential mega verdicts. Clearly, claims costs, whether from litigation or settlement, are increasing.
In a two part series on the evolving role of life care plans in MPL claims and litigation, we’ll explore life care plans, the life care plan industry, how life care plans are used, and how defense attorneys and carriers can counter life care plans in court.
We spoke with four defense attorneys for this series:
Cecilie Loidolt,
Partner, Wheeler Trigg O’Donnell, in Minneapolis, MN
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Adam Bobkin,
Partner, Mauro Lilling Naparty LLP, in Woodbury, NY
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Kat Todd,
Partner, J Supple Law, P.C., San Rafael, CA
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Thomas Hurney, Jr.,
Member, Jackson Kelly PLLC, Charleston, WV
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What Is a Life Care Plan?
Life care plans are employed in personal injury, workers’ compensation, MPL, and product liability claims and litigation. To create a life care plan, a professional life care planner reviews the plaintiff’s medical records, interviews experts associated with the case, and analyzes the plaintiff’s current and future needs. Using that information, they then compose a plan that outlines the plaintiff’s needs for care and support, provides details about plan implementation, and quantifies the cost of that care. A life care plan not only includes what medical care is needed, but also details daily living support including home and vehicle modifications, assistive devices, therapies, and attendant care.
Life care planners prepare life care plans and testify about them in MPL depositions and trials. Two organizations offer life planning certifications:
- The International Commission on Health Care Certification® offers a Certified Life Care Planner™, also known as a CLCP®, designation. Healthcare professionals need three years of experience in life care planning, 120 hours of post-graduate or post-specialty degree training in life care planning or related areas and must pass an exam. The application fee is $495; other costs include exam prep materials and courses to prepare.
- The American Academy of Physician Life Care Planners™ also offers the Certified Physician Life Care Planner™, also known as the CPLCP™, certification open to licensed MDs or DOs. Physicians need 10 years of clinical practice experience, need to be board certified, need to have experience authoring at least 25 life care plans, and must have experience testifying in either 20 depositions or trials. The exam application fee is $425 for AAPLCP members; $575 for non members.
Defense attorneys note that life care plans tend to follow a prescribed formula. “They do seem performative,” said Todd. “There seems to be a template, for example, for a pediatric plaintiff birth injury case or a middle-aged person who experienced an ischemic infarct. They may craft the life care plan even before they’ve spoken to the retained physician or the plaintiff.”
Life care plans have been part of plaintiff cases for more than 40 years. “I remember seeing life care plans in catastrophic cases from the earliest days of my practice, and I started practicing in 1983,” said Hurney. “Paul Deutsch, who could be considered the father of life care planning, took concepts from case management and catastrophic disability research in the mid 1970s, and essentially founded the life care planning industry.”
Life care plans have their root in case management in that case managers help patients understand and obtain their current medical needs. Estimating future medical expenses through a life care plan is almost exclusively a litigation tool. “The life care plan document in and of itself is certainly unique to litigation, but there actually is little difference between the life care planner’s clinical practice and what they are doing in litigation. The report or life care plan they prepare serves the needs of the litigation by communicating information about future medical needs in a condensed way,” explained Bobkin.
“If you ask life care planners if they create life care plans in their clinical practice, most life care planners will give you the information you are looking for,” he continued. “I think it is a worthwhile question to ask. But in some ways that is a distinction without a difference from what they do in their clinical practice. Just because they don’t produce this document doesn’t mean they aren’t assessing and communicating to patients what their future medical needs might be and how to plan for them.”
The Evolution of Life Care Plans
Over time, life care plans have evolved into sophisticated documents that are designed to justify a wide range of goods and services that are described as necessary for plaintiffs to receive the care they need due to an injury caused by alleged medical malpractice. “Life care plans are something that plaintiffs’ attorneys have used for a long time to build up damages numbers in their cases so that plaintiffs can receive damages outside of noneconomic damages caps,” said Loidolt.
“I’ve been in practice for 32 years, and in the 1990s, most life care plans would cost around $2 million,” she continued. “But when legislative caps on noneconomic damages came in, the way around that for the plaintiff’s bar was to identify future damages in a life care plan that they can ‘blackboard’ to drive up the damages outside of the cap. So, the life care plans became more and more exorbitant.”
Hurney agrees, saying, “Early on, plaintiff’s lawyers adapted to using them in catastrophic injury cases like birth injury, major burns, and paraplegia. Over time, plaintiff’s lawyers began to use them to provide the jury with an option to award money that they can argue will compensate the plaintiff for the cost of future care for their injuries. Life care plans, from the plaintiff’s lawyer point of view, provide some measure of concreteness to what an injury will cost in the future.”
He recalled how in West Virginia, before noneconomic damage caps were imposed, large verdicts that included noneconomic damages were routinely affirmed. “But now, for example, if recovery for noneconomic loss is statutorily limited to $750,000, in a case involving paraplegia, the only route to a larger verdict is with economic damages, like life care plans, which in most states are not capped. Even where noneconomic loss is not capped, life care plans if accepted by the jury greatly increase verdicts.
Impact of Collateral Source Rule on Life Care Plans
The collateral source rule states that any benefits received by the plaintiff that have an independent source from the alleged defendant can’t reduce the monetary damages the plaintiff can otherwise recover from the defendant. In practice, the rule means that health insurance or disability benefits can’t be used to reduce adverse verdicts. Collateral source rules vary depending on the state. In some states, collateral source rule reform allows defense attorneys to introduce evidence of collateral sources of payments, while in other states, defense attorneys are not allowed to introduce such evidence.
“In California, most collateral sources are admissible with a couple of exceptions,” Todd noted. “State and federal health insurance plans, like Medicaid, which in California is Medi-Cal, may not be admissible. The thought behind that is there will be lien recovery rights. But private health insurance is an admissible collateral source. There has been a fierce battle in California within our life care planning community about how to handle collateral sources, particularly admissible collateral sources.”
“Traditionally, many life care planners in California would consider admissible collateral sources in their life care plans, which they build around the costs that the patient would be responsible for,” she continued. “However, there has been infighting in the life care planning community in California to exclude collateral sources to the point where a senior life care planner, beloved in that community, has been verbally challenged at some of their conferences even though the person has basically retired. This shows you that it is tough for life care planners to put collateral source in their plan even if they think that is prudent and fair.”
The Costs Behind a Life Care Plan
The overall costs involved in a life care plan depend on three factors: the goods and services included in the life care plan, how the costs on each of those items is calculated, and the life span of the plaintiff. The goods and services involved in a life care plan typically include:
- Medical treatments, procedures, and surgeries
- Physical, occupational, and speech therapy
- Educational assistance or support services such as tutoring
- Medications
- In-home medical care or attendant assistance
- Assistive equipment such as wheelchairs, walkers, and canes
- Mobility modifications to a home including wheelchair ramps, lifts, and handrails
- Transportation such as a wheelchair van
- Lost lifetime income
To estimate costs, life care planners either gather information from local hospitals and service providers, use national databases such as FAIR Health, Physicians’ Fee Reference, or Context4Healthcare, or reference Medicare fee schedules or the Medical Fee directory. Life care planners use these resources to determine what is known as usual, customary, and reasonable fees, which are the amounts paid for medical services in a specific geographical area based on what providers customarily charge for the same or a similar medical service.
Those costs are then projected into the future and then discounted back into their present value. The plaintiff’s lawyer may hire an economist to create these projections.
“While most life care planners use database sources, there are some now, particularly in medical professional liability cases, who will use the defendant hospitals’ charges,” said Bobkin. “This creates, in some ways, an issue for the hospital because they don’t want to dispute the reasonableness of their own charges. It’s a way for plaintiff’s attorneys to turn the case around on the hospital and take the wind out of the sails of the arguments the defense might make about the best ways to determine a reasonable cost.”
Loidolt noted that the costs in life care plans can be based on inadequate research. “That’s why we bring in damages experts to say that the person doesn’t need around the clock attendant care for example because the care is being provided by a parent or grandparent,” she said. “Or, some of the services included in a life care plan, such as speech therapy or an attendant at school may be provided for free within the context of an individualized education plan (IEP).”
There are several strategies that plaintiff’s attorneys use to inflate life care plan costs, according to experienced defense attorneys, including adding 24-hour attendant care, adding financial managers or guardians, and inflating plaintiff life expectancy.
Attendant care. Attendant care, she added, is one way that life care plan costs can quickly escalate, because costs are already high for a home healthcare aide or nurse and those costs will inflate over time. “We’re also seeing more requests in a life care to rebuild a home,” she said. “I had a stroke case in Minneapolis where the plaintiff was 38 with a spouse and two children who lived in a 1,200 square foot townhome. They had a housing expert come in who said that they needed to rebuild that townhome into a five bedroom home with full accommodations that would cost $1 million.”
Guardians or Financial Managers. Bobkin related that plaintiff’s lawyers are, in some cases, particularly catastrophic injury cases, adding a conservator, guardian, or financial manager in a life care plan. “The defense will point out that an individual with a catastrophic injury cannot, of course, manage $40 million of their own money,” he said. “We had a case where the plaintiff claimed fees of 1 or 2% of assets under management every year in a life care plan with a total value of $40 million, which added $400,000 or $800,000 to the plan every year. That adds millions of dollars to the plan—it was an enormous amount of money.”
“Interestingly, the jury did not award any of that money in the initial verdict,” he continued. “They gave the plaintiff all the money that was asked for in the life care plan, but not the additional fees for the money manager. This is a different way we are seeing that plaintiff’s attorneys are inflating the value of life care plans.”
Life expectancy. Life expectancy within life care plans is another way that plaintiff’s attorneys inflate life care plan costs, because they assume someone with a catastrophic injury, stroke, or birth injury will live a normal lifespan. “A huge driver of outrageous life care plan costs is assuming a normal life expectancy for a stroke patient or a cerebral palsy child,” Loidolt said. “As a defense attorney, you have to go after the life expectancy number. What I do is when I have the life care planner on the stand, I ask where they get the life expectancy number from. I ask whether their life expectancy number is medically based and whether they checked medical research to see what the life expectancy actually is for a person with the specific injury or condition that the plaintiff has.”
Bobkin also believes that attacking life expectancy estimates is a productive avenue for defense attorneys to follow. “Life expectancy is a huge issue that has really gone undefended by the defense bar, in my opinion, in terms of not doing enough to challenge the plaintiff’s opinions,” he said. “The plaintiff’s experts offer opinions that the plaintiff will live a full life expectancy, but they have to meet their burden of proof—they have to prove that full life expectancy is valid in the case of the plaintiff and their specific injury or medical condition.”
“What the plaintiff’s lawyers do is they have their physician who is supplying the medical need portion of the life care plan who will say, ‘Well, I have patients with this condition who are 70 or 80. And it’s my experience that if they get all this care, they will live that long.’ And they refer to articles and studies, none of which actually support the idea that if the plaintiff gets that care, they will live that long,” he continued. “It’s anecdotal, but we actually have recognized experts known as actuaries who scientifically determine life expectancy. More importantly, life expectancy is an actuarial science. It is not based upon anecdotal experiences of a single physician. Where expert witness depositions are allowed, a deep dive on the statistical basis for a plaintiff’s expert’s opinions of a full life expectancy can lead to preclusion.”
A Final Word
For defense attorneys and the hospitals, health systems, and healthcare professionals they defend, life care plans represent both headaches and opportunity. In Part 2 of our life care plan series, scheduled for publication in early December, we’ll focus on actionable strategies that defense attorneys can use to undermine life care plans and win more cases.