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Future medical expenses are often the largest element of economic damages in personal injury cases. The testimony of life care planners for the plaintiff and defendant can greatly influence the jury. Here are nine key questions you should ask any life care planner. These questions can expose weaknesses in their reports and testimony. Ask your life care planners these questions before filing their reports, and ask these questions when deposing opposing life care planners.
- Did the plaintiff have any pre-existing medical conditions? If so, is treatment for those conditions in the life care plan costs?
If an individual has a pre-existing condition, the cost of ongoing care for that condition should not be included in the life care plan, as it would have been needed had the injury not occurred. The life care planner may not have requested or received any pre-injury medical records. For prior orthopedic injuries and for some chronic illnesses, removing these costs can substantially alter the lifetime costs for treatment. The cost should be in the plan if the event aggravated the chronic illness or prior orthopedic injury.
- Did the plaintiff have unrelated injuries or illnesses after the event?
If a plaintiff has unrelated injuries or illnesses after the event that resulted in new, additional, or an exacerbation of injuries, these should be separated out in the report. If it can be determined from medical records that certain diagnoses, complaints, and treatments are related to the later event, and not the event the life care plan addresses, costs stemming from the later event should not be included in the life care plan. The life care planner should rely on a medical opinion from a treating or consulting physician.
- Did you visit the plaintiff in his or her home (or request to)?
Visiting the injured person at home gives a life care planner a better understanding of a person’s impairments, limitations, and living situation to decide what assistance and home modifications to recommend. If a life care planner did not visit the home, ask further questions to understand the basis for opinions on the need for assistance and home modifications. During the current SARS-CoV-2 (Covid-19) pandemic, in-person visits may not be possible. Life care planners may conduct plaintiff interviews by video conferencing (such as Skype) when appropriate. However, interviews conducted remotely have limitations and may not be appropriate in some situations, such as when the plaintiff has significant mobility impairments. Every effort should be made to gather the most reliable information from the plaintiff.
- Did you speak to the treating physicians (or request to)?
Regardless of whether the life care planner is a nurse, rehabilitation consultant, or physician, the life care planner should try to speak with all current treating physicians. Treating physicians may refuse to speak with a life care planner, but the life care planner should always request a conversation and document the request and response.
The treating physicians can explain their assessment of the person’s current condition and their recommendations for future care. Interviewing the treating physicians gives the life care planner a better understanding of the plaintiff’s current condition and future needs, beyond reviewing medical records. If the life care planner’s recommendations for medications, diagnostic services or treatment differ from those of treating physicians, they should document the reason for the difference. The rationale for the including medications not prescribed by a treating provider should be fully discussed.
- What are the most recent medical records you have reviewed?
Having the most recent medical records available provides an accurate basis for opinions in a life care plan. All medical records produced to attorneys may not have been provided to the life care planner. Later records could open a life care planner’s opinion to attack or force life care planners to change their recommendations. These records are not limited to the medical provider post-event, but should include medical providers, physical therapists, counselors, and/or experts.
- Did you include potential complications in the cost of the life care plan?
It is important to know how certain a treating or consulting physician is about the need for each future good or service. When the physician opines one is needed with “reasonable medical certainty,” it should be included in the cost of the life care plan. When it is only “possible” it will be needed, that good or service is considered a potential complication. Goods and services for potential complications should always be discussed and listed separately, but their costs should not be included in the total cost of the life care plan.
- What are the sources for the current costs in the life care plan?
There are several acceptable sources for the current cost of goods and services. Life care plan standards require using usual, customary, and reasonable prices. However, in some cases the life care planner uses costs from an individual practitioner or facility that may not be reasonable.
- Are the prices for medications for generic drugs or for name-brand drugs?
There are generic versions of many prescription medications that cost much less than the name-brand equivalents. For drugs to be taken for the plaintiff’s lifetime, the lifetime cost difference can be large. Name-brand medications are rarely required for medical reasons. Unless a treating physician documents a medical reason, the injured person needs a name-brand medication, life care planners should use the cost for the generic version. Some life care planners incorrectly average the cost of name-brand medications and generic medications. This results in over-funding a plan when a person takes generic medications and under-funding a plan when the person needs name-brand medications.
- Should the life expectancy be adjusted due to the event?
The plaintiff’s age and life expectancy directly impacts the cost of future care and should be addressed when beginning case review. Life care planners start with government data on average life expectancy specific to the plaintiff’s current age, gender, and race. The data source is the U.S. Department of Health and Human Services National Vital Statistics Report. Some catastrophic injuries can decrease the plaintiff’s life expectancy. In cases involving severe traumatic brain injury, spinal cord injury, or birth injuries, the life care planner should consult a life expectancy expert.
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