Date: 11.05.2020 Time to read: 5 min
"It's Not What You Know, It's What You Can Prove..." Training Day.
Litigation is never over until the plaintiff angles his coffer at the last dollar and the defense drops its shield in front of the last dollar. In the end, liability matters less than the damages. And the plaintiff (naturally) has the burden of proving damages. Restatement (Second) of Torts § 912. The average person needs an expert to walk him or her through the damages case; what better example than future medical damages.
The plaintiff has to show that future medical damages are reasonably certain to occur, and the plaintiff has to demonstrate that the amount of future medical damages is reasonably certain. Reasonably certain is a slippery standard that can trap an attorney in speculation. Life care plans avoid this pitfall.
A life care plan is a powerful weapon in the litigator’s arsenal to ground claims for future medical damages and tie together damages expert testimony. The defense bar loathes seeing a life care plan precisely because of how well a life care plan supports claims for future medical damages. Life care plans are valuable in any situation where the plaintiff will need future medical care.
Despite the versatility of life care plans, plaintiffs’ firms limit their use to high policy limit and catastrophic cases. The life care plan is often cost prohibitive. However, with Expertpays, litigators can utilize life care plans in more situations and get more out of their cases.
Generally, a damages award compensates the plaintiff for the injury they have suffered and puts them in the same position they would have been in sans the injury. This award is compensatory damages, which encompasses recovery for all past, present and future harm legally caused by the defendant. Restatement (Second) of Torts § 910. Compensatory damages bifurcate into special and general damages, and special damages include medical damages
When it Comes to Injuries, the Court is there to Specially Compensate
The plaintiff must prove that special damages are reasonably certain to occur. Current and previous medical treatment is less complicated on this score. After the plaintiff authenticates the medical bills (otherwise they cease to exist), testimony needs to affirm that these charges are “reasonable” and “necessary.” Of course, this process can get complex --- a doctor may need to testify as to a procedure’s necessity, but increasingly, a billing expert may need to testify as to the reasonable and customary nature of the charge for that procedure.
The Ad Hoc Nature of Future Specials
Future medical damages are different. There are no bills from the future. Nothing to authenticate. Further, some jurisdictions hold that expert testimony based on past or even current medical bills is insufficient to support future damages. Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308. And in other jurisdictions defendants argue that the market value, rather than the current billed amount from providers, is the correct valuation.
Without current provider bills as a guide, the plaintiff show both (1) the fact that the plaintiff is reasonably certain to sustain these damages and (2) the specific amount of damages reasonably certain to occur.
While the plaintiff must meet an evidentiary burden of demonstrating that future medical damages are “reasonably certain,” the court considers all evidence in assessing whether the plaintiff has met this burden. As such many jurisdictions allow plaintiff’s counsel to even do without expert testimony in meeting this burden. But, whether future medical damages are “reasonably certain” is an issue of fact and therefore left to the jury to decide. As we know, the Expertpays Rule is that if the average person doesn’t know, you need an expert to show. Nowhere is a layperson’s dearth of knowledge more plain than future medical damages.
But here, even expert testimony can go awry: the “reasonably certain” standard is inapplicable to expert testimony regarding future medical damages. The court can infer “reasonably certain” from the totality of the evidence.
Add to this wide berth for speculation the biological and beautiful variation of plaintiffs --- different life expectancy, occupational capacity, geographic location, injury severity and comorbidity. Ostensibly, an unpracticed lawyer could present expert testimony regarding future damages manufactured from the “gossamer threads of whimsy.” Those threads are bad for summary judgment motions and they are very bad in this context. Auto Club v. Kenneth Babin, 41 Fla. L. Weekly D2603b (Fla. 5th DCA 2016).
Enter The Life Care Plan
So, yes technically the reasonably certain standard is inapplicable to expert testimony. But expert testimony regarding future medical damages should (1) show that these damages are reasonably certain to occur and (2) show a reasonably certain amount of money for these damages. The life care plan accomplishes this with the added bonus of organizing the entire damages case.
The life care plan is a “dynamic document based upon published standards of practice, comprehensive assessment, data analysis, and research, which provides an organized, concise plan for current and future needs with associated costs for individuals who have experienced catastrophic injury or have chronic health care needs.”Life Care Planning and Case Management Handbook, 4th Edition.
The life care planner (1) reviews the client’s medical records, (2) interviews the client, the client’s relatives, and the client’s treating physicians, (3) obtains medical recommendations (or makes those recommendations if the life care planner is a physiatrist) for future care, and (4) calculates the cost of that future care.
Past the technical definitions, we know that good lawyering is good storytelling. Consequently, good expert testimony helps the lawyer tell that story. And the life care planner’s testimony is a story that begins essentially where the liability expert’s story left off.
First, there is a walk through the injury sustained by the client from the client and those closest to the client. Second, the treating physicians are again heard regarding the medical nature and severity of the client’s injuries. Third, the physiatrist now outlines how far this injury will stretch into the future for the plaintiff. And fourth, the life care planner (or physiatrist life care planner) calculates an accurate amount for the future cost of this medical care. Quite the bookend of a special damages case.
Life Care Plans are Powerful
There are entire corners of the internet devoted to warning about how dangerous life care plans are to the defense’s case-in-chief. Indeed, catastrophic high dollar case life care plans are expected to garner fear, but the defense is afraid of even non-catastrophic, smaller life care plans: “[w]hile life care plans are expected in a clear catastrophic case, like an infant brain injury, paralysis or severe burns, a seemingly benign case can become significant with the appearance of a life care plan projecting treatment, therapy and various needs.”
Life care plans even push the defense to irrational terror:
“Counsel for the Plaintiff would prefer nothing better than for the life care planner’s work product to become a piece of admitted evidence. Irrespective of whether or not the life care planner’s report is ultimately admitted, other plaintiff witnesses, such as treating physicians, independent medical experts and the economists, may find themselves referring and relying on the life care plan. If admitted, the report becomes the centerpiece of the plaintiff ’s damage claim that will be referred to throughout the trial.”
While the chance of a court admitting an expert report into evidence is slim, Hurney and Miller correctly assess how disastrous this would be for the defense. Further, both shrewdly recognizes the source of the life care plan’s power: weaving together testimony from all the other damages experts.
Clear. Efficient. Powerful. Underused.
Yet, life care plans still only see the light of day in cases with high policy limits and catastrophic injuries. For good reason! Several thousand dollars go into a life care plan, and that is money an attorney pays up front. Advancing that much makes sense when the potential win is high, but it makes less sense when the win is both lower and potentially months or years away.
Without the up front cost, however, is a different game altogether. Expertpays removes this barrier and allows plaintiffs’ firms to obtain life care plans of all types without any up front cost. The Expertpays way lets plaintiffs’ firms follow the Expertpays Rule, hire more experts, obtain more life care plans, strike more fear into the defense, and win, win, win.
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