Developing Limits on Testimony by Physician Life Care Planners

Plaintiff life care plans by physicians certified as life care planners (PLCPs) are common in Texas personal injury cases. Many, perhaps most, of these physicians are board certified in the specialty of physical medicine and rehabilitation (PMR), also called physiatry. Certified life care planners may also be credentialed as registered nurses, vocational counselors, social workers, certified case managers, special education teachers, or psychologists.[1]

Certified life care planners who are not physicians usually rely on treating physicians or consulting physicians for medical opinions on the goods and services medically necessary for the plaintiff’s future treatment. Those physicians tend to limit their opinions to conditions and treatments within their medical specialties. Consulting physicians relied on by RPC’s life care planners usually decline to opine on the need for future treatment outside their specialties. For example, a consulting orthopedic spine surgeon may not opine on the need for surgery for extremities (e.g., shoulders, knees) or the need for psychiatric medications or counseling.

However, we often see PMR PLCPs opining a plaintiff needs future surgical, psychiatric, or other treatment that is outside a physiatrist’s scope of practice unless the PLCP has obtained the opinion of a physician in the relevant specialty. Even when the PLCP is hired by the plaintiff and there is no legal obstacle to making contact, the PLCP did not consult or try to consult the plaintiff’s treating physicians.

What limits does Texas law set on the opinion testimony of a PLCP? The scope of a PLCP’s medical opinion testimony may be limited in two ways: (1) all courts require witnesses to have specific medical expertise in the medical issues on which they opine, and (2) some courts outside Texas have disallowed medical opinion testimony by a PLCP that is not based on the recommendation of other medical experts in the case or of a treating healthcare provider.

Any medical opinions must be tied to the expert’s specific medical expertise.

Courts limit the testimony of any expert by the general rule that there must be a connection between the expert’s qualifications and the specific opinion offered. The party offering the expert’s testimony bears the burden of proving this connection. This is a fact-specific inquiry by the trial court, but appellate case law addressing admissibility of medical testimony provides some general guidance. These cases uniformly hold that an expert’s medical qualifications must relate to the specific medical issue at hand—i.e., a medical degree is not a sufficient qualification by itself to provide a particular medical opinion.

• “[G]iven the increasingly specialized and technical nature of medicine, there is no validity, if there ever was, to the notion that every licensed medical doctor should be automatically qualified to testify on every medical question. Such a rule would ignore the modern realities of medical specialization.” Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996)
• “[N]ot every licensed physician is automatically qualified to testify on every medical question.” Croysdill v. Old Republic Ins. Co., 668 S.W.3d 782, 792 (Tex. App. El Paso 2023, pet. denied)
• “[T]he proffered expert must have knowledge, skill, experience, training, or education regarding the specific issue before the court to qualify the expert to give an opinion on that particular subject.” ; see also AAA Cooper Transportation v. Davis, No. 05-18-00541-CV, 2019 WL 3928754, at *8 (Tex. App. Dallas Aug. 20, 2019, no pet.)
• “The proper inquiry concerning whether a doctor is qualified to testify is not his area of expertise, but his familiarity with the issues involved in the claim before the court.” State Office of Risk Management v. Adkins, 347 S.W.3d 394, 402 (Tex. App. Dallas 2011, no pet.)
• “Not every licensed doctor is automatically qualified to testify on every medical question. However, ‘expert qualifications should not be too narrowly drawn.’ … The focus is on whether the expert’s expertise goes to the very matter on which he is to give an opinion.” Christian Care Centers, Inc. v. Golenko, 328 S.W.3d 637, 643 (Tex. App. Dallas 2010, pet. denied)

There are currently no reported Texas opinions addressing limits on the types of treatment a PLCP can recommend without consulting physicians in relevant specialties. The two case summaries of Texas appellate courts address testimony on causation or diagnoses and do not address opinions on future treatment outside the scope of practice of PMR physicians. In both cases the trial court admitted the PLCP’s opinion testimony, and the appellate decision was based on a finding of no abuse of discretion by the trial court. Both PLCPs were PMR physicians.

AAA Cooper Transportation v. Davis, No. 05-18-00541-CV, 2019 WL 3928754 (Tex. App. Dallas Aug. 20, 2019, no pet.): PLCP was qualified to offer medical opinion on causation.

• A physician designated as life care planner was also opining on the cause of arm issues.
• “Appellants argue that Dr. Marchetti is ‘not an orthopedic doctor’ and, therefore, not qualified to contest the opinion of Dr. Zehr, Davis’s treating orthopedic surgeon, as to the cause of Davis’s arm issues…. Although Dr. Marchetti’s specialty was physical medicine and rehabilitation rather than orthopedic surgery, the record shows that he was a member of the American Association of Orthopedic Medicine and had experience dealing with neuromas…. We conclude this is sufficient to show that Dr. Marchetti had specialized knowledge, skill, experience, training, or education that would assist the trier of fact on the subject of the claimed injury to Davis’s arm. The trial court did not abuse its discretion in admitting his testimony.” (*8)

Toyota Motor Sales, U.S.A. Inc. v. Reavis, 627 S.W.3d 713 (Tex. App. Dallas 2021, no pet.), review granted, judgment vacated by agreement pursuant to settlement (Jan. 7, 2022): PLCP was qualified to offer opinion on plaintiffs’ diagnosis.

• A physician designated as a life care planner also opined on the plaintiffs’ diagnostic conditions and disabilities. (751)
• The physician was not board certified in the subspecialties of brain injury medicine or pediatric physical and rehabilitation medicine. (751)
• “Gonzales is a physician who is board certified in three areas, physical medicine and rehabilitation, pain medicine, and occupational and environmental medicine. He is also a life care planner.” (751)
• “Based on his training and experience, we conclude the trial court did not abuse its discretion by determining that Gonzales was qualified as an expert.” (751)

Texas medical malpractice cases also provide some guidance. A statute has specific requirements for medical expert testimony in a malpractice case. Tex. Civ. Prac. & Rem. Code § 74.401(a) states:

[A] physician may qualify as an expert witness on the issue of whether the physician departed from accepted standards of medical care only if the person is a physician who:

• is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose;
• has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and
• is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care.

According to Morrison v. Asamoa, 648 S.W.3d 628, 644 (Tex. App.–Eastland 2022, no pet.), “Experts are qualified on the basis of training or experience, in turn, if they are (1) board certified or have other substantial training or experience in an area of medical practice relevant to the claim and (2) actively practicing medicine in rendering medical care relevant to the claim.”. The inquiry focuses more on the medical condition involved in the claim and less on the doctor’s specific area of specialty:

• Roberts v. Williamson, 111 S.W.3d 113, 121–22 (Tex. 2003): Based on qualifications and experience, a pediatrician was qualified to opine on the cause and effect of neurological injuries.
• McKowan v. Ragston, 263 S.W.3d 157, 162 (Tex. App.–Houston [1st Dist.] 2007, no pet.): An infectious disease specialist was permitted to opine on the standard of care for a cardiologist treating an infection.
• Blan v. Ali, 7 S.W.3d 741, 746-47 & n.3 (Tex. App.–Houston [14th Dist.] 1999, no pet.): A neurologist was permitted to opine on the standard of care applicable to a cardiologist and emergency room hospitalist when the condition (a stroke) fell within his particular area of expertise.
• Granbury Minor Emergency Clinic v. Thiel, 296 S.W.3d 261, 267 (Tex. App.–Fort Worth 2009, no pet.): “[T]he applicable ‘standard of care’ and an expert’s ability to opine on it are dictated by the medical condition involved in the claim and by the expert’s familiarity and experience with it, not by the defendant doctor’s area of expertise.”

Some courts have not allowed a physician/life care planner to testify to medical opinions that no treating physician or other medical expert has provided.

A few courts in other states have limited the medical opinion testimony of PLCPs by requiring that their opinions find support in the diagnoses of the plaintiff’s treating physicians or the defendant’s medical experts. These courts reason that the practice of life care planning involves reliance on the medical opinions of professionals who provide direct treatment and diagnosis to project future medical costs, and thus in the litigation context, a life care planner must similarly base his projections on the medical opinions of others, rather than provide new and different opinions. See the Florida appellate decision Anderson-Moody v. Wilson, 357 So. 3d 1240 (Fla. Dist. Ct. App. 2023): “Nothing in the record indicates that life care plan experts typically use their experience as a physician to determine the future medical care needs of plaintiffs. Rather, life care planners rely on admissible evidence from medical experts or treating physician when creating the life care plan” (at 1243).

In the most recent decision, Brown v. BellSouth Telecommunications, LLC, Case No. 1:21-CV-171-HSO-RPM, 2023 WL 6929800 (S.D. Miss. Oct. 19, 2023), for example, a federal district court excluded the testimony of a PLCP because his plan was not tied to the medical evidence in the record: “Dr. Smith’s life care plan does not evince that he based his predictions on sufficient medical evidence to predict [the plaintiff] will require the medical care that he budgeted for her in his report. Although Dr. Smith is a medical doctor, he was only designated to produce a projection of future medical costs. He did this without a sufficient basis in the medical evidence to support the medical need for such future care” (Id. at *7).

In Anderson-Moody, referenced above, the court excluded the life care planner’s medical opinions that were not based on the recommendations of a treating physician or other medical expert in the case: “The question presented is whether an expert witness, offered as a life care planner, may infuse his or her own medical opinions in calculating certain costs of future medical care when such future care is not recommended by a treating physician or medical expert. We answer the question in the negative” (Anderson-Moody, 357 So. 3d 1240 (Fla. Dist. Ct. App. 2023) at 1242). The PLCP in that case could not include future epidural steroid injections and facet joint injections in his life care plan because they had not been recommended by treating physicians or other medical experts (Id. at 1243).

Further Development of Texas Law

In many personal injury cases, future medical expenses are the largest element of economic damages and serve as a benchmark for non-economic damages. Plaintiff life care plans with a discounted present value of several million dollars are now common. PLCPs may opine a plaintiff needs surgical procedures or decades of medical goods and services based on a review of medical records and a one-time interview of the plaintiff by telephone or videoconference, never examining the plaintiff in person. The PLCP never talked with any of the plaintiff’s treating physicians and has no input from consulting physicians from other specialties. The PLCP may include in the life care plan tests, medications, surgeries, home care, and medical equipment no treating physician has ever recommended.

In appropriate cases, defense counsel should consider motions to limit the recommendations for goods and services in the PLCP’s life care plan to those:

• Prescribed or recommended by treating physicians consistent with their medical specialties
• Recommended by the PLCP consistent with his/her medical specialty
• Recommended by consulting physicians hired by the plaintiff consistent with their medical specialties

Defense counsel should also consider questioning if a PLCP has a reasonable basis for recommending lifetime medications physical therapy, or counseling when there is no experience with the treatments to show they are needed or will be effective. In most cases there are no evidence-based treatment guidelines that support lifetime medication or therapy prescriptions for the sorts of injuries seen in personal injury litigation.

Development of reasonable legal standards will require defense counsel to give the trial court in-depth motions with affidavits or reports by their own medical experts in the relevant medical specialties.

[1] International Commission on Health Care Certification, Candidate Handbook: Certified Life Care Planner, pp. 7–8, https://www.ichcc.org/images/PDFs/Current_Working_Candidate_Handbook_and_Application_Form_me_.pdf.