Assailing the Plaintiff’s Life Care Plan – Mitigate the Inflate
October 15, 2021
While we are all accustomed to seeing life care plans advanced by opposing counsel in obviously catastrophic cases (spinal cord injury, stroke/brain injury, birth trauma, amputation and the like), enterprising Plaintiffs’ lawyers are expanding their reach for use in cases where the claimed future medical and other allied health care needs appear far out of proportion to the nature of the trauma allegedly sustained by the plaintiff.
Regardless of the underlying injury, an early evaluation of its mechanism, the initial diagnosis, treatment rendered, the healthcare providers’ discharge plan/recommendations, and the patient’s compliance therewith (or not) all provide valuable information to begin establishing the strategy for mitigation. Where it seems likely that Plaintiff will prepare a life care plan, it is never too early to consider the line-up of experts necessary to offer the support which provides a both a practical rebuttal to the Plaintiff’s plan and a solid foundation for the defense life care planner. Likewise, the appropriate defense consultants are invaluable in parsing out the items which are necessary and causally related vs. recommendations that artificially drive up the cost of the Plaintiff’s plan.
During discovery, a deep dive into the Plaintiffs care and treatment, both past and present, is a necessity. Records and imaging studies should be requested not only from known health care providers, but also from the Plaintiff’s health and disability insurer(s) in order to track down other providers whom opposing counsel may have “forgotten” to disclose or perhaps were not disclosed by the Plaintiff. Counseling and school records (in cases involving a minor plaintiff) are a must, as well as employment/tax records for injured adults.
Depending upon the severity of the injury coupled with any pre-existing co-morbid conditions, retention of an expert whose sole focus is life expectancy can result in multi-million dollar mitigation of the Plaintiff’s plan. A skilled life expectancy expert focuses on the individual characteristics of the Plaintiff, something most often overlooked by Plaintiffs who choose to rely upon the government’s life expectancy tables which, in the vast majority of cases, have no real practical application to the Plaintiff’s particular condition and likely prognosis. Birth injury, stroke and paralysis cases are those where serious consideration should be given to the retention of a dedicated life expectancy expert.
Deposition discovery should be geared toward a “compare and contrast” approach to gather information tending to expose the Plaintiff’s life care plan as the money grab it is. Often, Plaintiff’s plan will contain specialty consultations, therapies (medical and physical), counseling and equipment which have not been recommended by the Plaintiff’s treating healthcare providers or, even if recommended, not sought by the Plaintiff. Consideration should be given to deposing the treating providers to set up incongruities between their recommendations (or lack thereof) and those contained within Plaintiff’s plan. Life care planners will often remove certain recommendations when confronted with this information either in deposition or at trial. It is vitally important to prove that the recommendations set forth in the Plaintiff’s plan are most frequently derived from the Plaintiff’s medical experts, often without reference to the actual medical records, rather than the treating healthcare providers.
Cases involving cognitive deficits are particularly challenging in that there is often little to no baseline data to which Plaintiff’s current level of function can be compared. There is a subset of plaintiff-oriented neurologists out there who will diagnose traumatic brain injury in slip/fall and low impact car accident cases, even where there are no complaints or other objective evidence of a head injury. Vocational losses will then be claimed due to various causes from subjective complaints of headache to an inability to concentrate/focus (so-called executive function). In those circumstances, a qualified neuropsychologist can be of assistance in examining and testing the Plaintiff in order to assess for malingering. Surveillance may also assist in that regard.
Given the exposure attendant to cases involving life care plans, and the very low threshold for their admissibility in court, it is imperative to begin chipping away at Plaintiff’s numbers early, often, and category by category. The best we can often do is to “set a floor,” but establishing Plaintiff’s plan as over-reaching goes a long way toward showing that other aspects of their case may lack credibility as well.