Defending Damages in High Exposure Cases

Hall Booth Smith, PCJames E. Looper, Jr.

jlooper@hallboothsmith.com615-313-9911

Common Characteristics of the Lawsuit

• Common Wisdom– If you discuss damages or put up numbers you

condemn your chance of success on the case– Spending time on damages undermines the

standard of care or causation defenses

Addressing Damages

Common Characteristics of the Lawsuit

• Plaintiff attorneys with expertise in medical negligence cases.• A sympathetic Plaintiff.• The lawsuit names all the medical specialties and hospital.

Each defense is at odds with the other.• Bad outcome which was preventable but for “Your”

negligence. • Well-traveled, experienced medical “experts” who make

thousands of dollars in testifying based upon opinions made in hindsight.

Common Characteristics of the Lawsuit

• Before damages can be properly defended, they must be accurately defined

• Assessment of future medical damages is key to understanding case exposure

• Underestimating future damages can lead to harmful exposure in personal injury litigation

• The proper strategy and implementation of available tools can help define damages so that they may be defended efficiently and effectively

Defining Damages

Proving Damages• By law the burden of proof is on the plaintiffs• Defendants must ensure Plaintiffs are held to this

burden by showing:– Future damages are reasonably certain to be sustained

or occur in the future– Plaintiffs meet their burden of establishing that future

medical costs meet the “medically reasonable and necessary” test

– Damages are only sufficient to compensate the patient or make them whole – not punish the defendant.

Defending Damages

• A properly presented damages defense enhances the standard of care and causation defenses, which makes it easier to prevail on key defenses.

• A properly presented damages defense will also help prevent an aberration verdict.

How do we defend damages?

• Provide a realistic view of life expectancy• Effective cross-examination of Plaintiff’s life

care planner• Obtain the right experts

Damages Experts:

– Life Expectancy

– Life Care Planners– Economists– Annuitists/Trust Officers– Rehabilitation specialists– Special education directors– Therapists– Individual Medical Specialties– And many others!

Damages Experts

• I. LIFE EXPECTANCY

• II. LIFE CARE PLANS VS. ACTUAL EXPENDITURES

• III. LIFE CARE PLANS VS. ACTUAL NEEDS AND ACTUAL AVAILABLE PROGRAMS

Catastrophic Damages Addressed

Life Care Planners – Who are they?

• Occupational therapists, physical therapists, rehabilitation counselors, case managers, social workers, psychologists, medical doctors, chiropractors, nurse practitioners, special education professionals, licensed speech pathologists, professional counselors and a lawyer.

The Life Care Plan Is Not Ordered By Actual Physicians

Responsible For Care

• Not to reasonable degree of medical certainty.

• Are not differential.

• Not based on real economic or medical data.

• “Profession” sponsored by Plaintiff’s bar• There is no government licensure or

government endorsed certification for life care planners in most states.

• Private certifications exist for completion of courses in hotels

• No “Board certification”

Life Care Planners

Life Care Planners

Purposely ignore past actual:

• Medical expenses

• Attendant care and service costs

• Average lifetime costs for CP, MR and other developmental disabilities

• Individualized Educational Plans specific to the plaintiff minor in your case - IEPC

Life Care Planners Do Not Know the Average Lifetime Costs of:

• Healthcare• Education • Shelter• Transportation equipment• Dental care• Long-term and elder care

For normal children, adolescents and adults

• Pediatricians do not consult life care planners routinely and do not report to them

• Children’s doctors do not use life care planners in normal course of business

• Life care planner’s business is testifying in court

• Their “expert testimony” is raw hearsay

Life Care Planners

Life Care Planners cannot write orders themselves for medical goods and

services.

Life Care Planners

Looking at actual yearly expenditures is a useful tool in determining future costs.

Actual Costs

Obtain accurate discovery of ACTUAL yearly expenditures for the care of the child

• 1) medical care and treatment• 2) therapy• 3) education• 4) transportation• 5) attendant care• 6) equipment• 7) medications

Actual Costs

In most cases, a life care plan far exceeds the actual services provided to child in a given year, as well as costs of care and services for a given year.

Actual Costs

LITERATURE IS AVAILABLE TO SHOW ACTUAL COSTS OF CARE

Actual Costs

"On the basis of that analysis, estimated lifetime costs in 2003 dollars are expected to total $51.2 billion for persons born in 2000 with mental retardation, $11.5 billion for persons with cerebral palsy, $1.9 billion for persons with hearing loss, and $2.6 billion for persons with vision impairment.“ (CDC, 1999)

Actual Costs

"Average lifetime costs per person were estimated at $1,014,000 for persons with mental retardation, $921,000 for persons with cerebral palsy, $383,000 for persons with hearing loss, and $601,000 for persons with vision impairment (Table). Indirect costs accounted for the largest percentage (range: 69%--81%) of total costs associated with each DD. Total direct costs (i.e., direct medical plus direct nonmedical) amounted to approximately $12.3 billion for persons with mental retardation, $2.2 billion for persons with cerebral palsy, $601 million for persons with hearing loss, and $721 million for persons with vision impairment. Among total direct costs, special education accounted for a substantial percentage (range: 42%--78%) for each DD (CDC, 1999)."

Actual Costs

“The costs associated with treating traumatic brain injury are estimated to be $48.3 billion annually. Costs associated with hospitalization are estimated to be $31.7 billion. Fatal brain injuries cost the U.S. $16.6 billion each year (CDC, 1999; Cope & O’Lear, 1993).

Review of model systems data (Traumatic Brain Injury Model System, 1993) reveals that the average cost for inpatient treatment of a case of severe TBI was approximately $120,000. This estimated was based on the cost for acute hospital care and acute inpatient rehabilitation and does not include rehabilitation efforts after the patient has left the hospital; it also does not include physicians’ fees.”

Actual Costs

Handbook

COLLATERAL SOURCE“Collateral source rules vary from state to state and jurisdiction

to jurisdiction (i.e., federal vs. state cases). In practice terms, collateral sources refer to rules that require that a personal injury award be offset by reasonable available services and products. Generally, this is represented in pediatric cases by including the free services that are available in the school system through the Individuals with Disabilities Education Act (IDEA). This may include special education, occupational therapy, physical therapy, speech and language therapy, aide services and specialized equipment and supplies. Other options may include offsets for Medicaid or Medicare. The consultant is advised to discuss this issue with the attorney prior to rendering an opinion.”

Handbook

USE TREATING PHYSICIANS AND EXPERTS TO TESTIFY ABOUT THE CHILD’S TRUE NEEDS

CONTRASTED WITH COMPONENTS OF THE LIFE CARE PLAN

Handbook

“In litigation-related cases, physiatrists can provide the medical foundation for plaintiff life care plans (Cooper & Vernon,1996; Council on Ethical and Judicial Affairs, 1997; Culver, 1990; Romano, 1996). Recognizing the unique needs of patients with disabilities is a regular part of the practice of physical medicine and rehabilitation.

Physiatrists can equally well evaluate plaintiff-generated life care plans for medical accuracy and necessary. Determining whether recommended medical services are medically necessary and appropriate is important to the defense.

Physiatrists can also provide testimony regarding the medical basis for life expectancy determinations.”

Handbook

“The original issuance of life care plans appeared in legal publication, Damages in Tort Actions (Deutsch & Raffa, 1981), which established the guidelines for determining damages in civil litigation cases.”

Handbook

TRIAL BY JURY

“The primary difference in a jury trial and other settings is the courtroom. At the jury trial, the expert is called to testify at the time the attorney deems to be the most critical for such testimony. The life care planner most frequently testifies without the benefit of hearing live testimony (referred to as sequestering), although in some courts the experts is allowed to sit in and listen to others testify.The presence of a jury and the necessity to sit in the witness chair adds an air of sophistication and formality that matched no other legal settings. It becomes very easy to do those things that one should not and to forget to do those things that one should. The consultant should realize that the jury will not remember most of testimony presented. What is remembered is the impression they held of the expert. Therefore, it is very important to avoid confrontation with the cross-examining attorney and become an advocate for one side over another. Remaining as objective as possible is vital but very difficult in the heat of the battle. “

Handbook

• Necessary to obtain experts who understand and can articulate the implications of the ACA

- Costs of future medical care- Costs of premiums- Future medical needs in consideration of what is provided for under the Act

Damages Experts

Healthcare reform means:

• Coverage for all individuals, regardless of preexisting conditions– Women may not be charged more than men for same

coverage– People with pre-existing conditions will receive immediate

access to healthcare with temporary high risk pool

• No annual or lifetime limits on benefits• Caps on amount of out-of-pocket expenses• Coverage for dependent children until the age of 26 • Lower costs of brand name drugs

Points for Cross Examination

• Have you been asked to adjust your life care plan to reflect the effects of implementation of the Affordable Care Act in 2014?

• Do you know what is covered by the ACA, and what is not covered?

• Isn’t this information that someone who is developing a life care plan and trying to determine the costs of future medical care would want to know?

Summary

• Disqualify them.

• Use them to introduce favorable evidence: actual cost of care; ACA; cost vs. price.

• Use them to introduce “Special Needs Trusts.”

Whose burden is it to establish life expectancy?

Most standard jury instructions allow for the use of standard tables unless it is shown that the claimants health is not average. It therefore becomes the defendants’ burden to establish the effect of morbidities upon mortality unless the plaintiff admits that the plaintiff-minor does not have the average life expectancy or plaintiff’s experts are forced to admit such.

All experts should therefore be asked the following question:

Do you have an opinion within a reasonable degree of medical certainty when the survival curve for infants similarly situated to plaintiff in this case falls to less than 50%? (At what age are more than 50% of the persons similarly situated to the plaintiff already dead?)

• A term of convenience to describe motor disorders due to brain impairment

• Affects roughly 1 in 500 live births• Non-progressive; appears early in life• Possible causes include hypoxia before or during delivery,

head trauma, and infections.• The exact cause cannot be determined in many cases.• Effects range from very mild to very severe

Cerebral Palsy (CP)

• Cardiovascular: Decreased cardiac output, contributing to decreased aerobic capacity; orthostatic intolerance; venous thrombophlebitis

• Pulmonary: Atelectasis; relative hypoxemia; pneumonia

• Musculoskeletal: Muscle atrophy and loss of strength; decreased muscle oxidative capacity contributing to decreased aerobic capacity; osteoporosis (bone loss); contractures; osteoarthritis

• Gastrointestinal: Constipation

• Genitourinary: Incontinence; renal calculi and urinary tract infections

• Skin: Pressure ulcers due to tissue ischemia

• Functional: Impaired ambulation and activity intolerance

• Psychological: Depression; altered sensory perception

Reference: Porth CM (2002). Pathophysiology: Onset of Altered Health State, 6th edition, Lippincott, Williams and Wilkins, p. 241.

Complications of Immobility

• The biggest point: Survival time can’t be predicted. • Two summary measures of survival time

–Median survival time = 50% mark– Life expectancy = average (arithmetic mean)

survival time• A simple example: 1, 2, 9

–Median = 2– Life expectancy = (1+2+9)/3 = 4

Basic Ideas Related to Life Expectancy

• Many potential factors– Etiology– Type of CP– Severity of MR (mental retardation level)– Ethnicity, Socioeconomic status– Type of residence– Many don’t matter (e.g., hair color)

• The biggest factors– Motor function: rolling, sitting, crawling, walking– Feeding: gastrostomy tube, FBO, self feeds

Determinants of Life Expectancy in Brain Damage

• Quality of care: "With good care normal life expectancy”– True for a normal child. Not true for the disabled.– Does care matter?

• If “good” versus “bad”, then yes. • If “excellent” versus “reasonable & necessary”, then no.

• Secular (time) trend: “Those old historical studies do not apply in today’s age of modern medicine!”– False. We can simply account for the trend of improved survival in the

past 20 years.

Two Other Factors

• Life expectancy is not a prediction of the person’s actual survival time

• The factors most associated with survival in cerebral palsy are motor function and feeding ability

• Life expectancy in brain damage depends on the severity of injury

Summary

Strategy: Define Opposition(Plaintiff Counsel)

Strategy

Attitude, combined with knowledge and preparation, can make these cases more defensible.

Is a bad result in a case evidence of malpractice?

NO! And here’s the knowledge and preparation behind the answer.

Attitude Applied

"The longer I live, the more I realize the impact of attitude on life. Attitude, to me, is more important than facts. It is more important than the past, than education, than money, than circumstances, than failures, than successes, than what other people think of, say or do. It is more important than appearance, giftedness or skill. It will make or break a company...a church.... a home. The remarkable thing is we have a choice every day regarding the attitude we will embrace for that day. We cannot change our past...we cannot change the fact that people will act in a certain way. We cannot change the inevitable. The only thing we can do is play on the one string we have, and that is our attitude...I am convinced that life is 10% what happens to me and 90% how I react to it. And so it is with you. We are in charge of our Attitudes."

Charles Swindoll

Attitude