Defending Damages in High Exposure
Cases
Hall Booth Smith, PC
James E. Looper, Jr.
jlooper@hallboothsmith.com
615-313-9911
Addressing
Damages
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
Common Characteristics of the Lawsuit
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.
Defining Damages
• 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
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:
Damages Experts
– Life Expectancy
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Life Care Planners
Economists
Annuitists/Trust Officers
Rehabilitation specialists
Special education directors
Therapists
Individual Medical Specialties
And many others!
Catastrophic Damages Addressed
• I.
LIFE EXPECTANCY
• II.
LIFE CARE PLANS VS. ACTUAL
EXPENDITURES
• III. LIFE CARE PLANS VS. ACTUAL NEEDS AND ACTUAL AVAILABLE
PROGRAMS
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.
Life Care Planners
• “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
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:
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Healthcare
Education
Shelter
Transportation equipment
Dental care
Long-term and elder care
For normal children, adolescents and
adults
Life Care Planners
• 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.
Actual Costs
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
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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.”
Handbook
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 plaintiffgenerated 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. “
Damages Experts
• 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
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
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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?)
Cerebral Palsy (CP)
• 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
Complications of Immobility
• 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.
Basic Ideas Related to Life Expectancy
• 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
Determinants of Life Expectancy in Brain
Damage
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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
Two Other Factors
• 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.
Summary
• 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
Strategy
Strategy: Define Opposition
(Plaintiff Counsel)
Attitude Applied
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
"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