Key points

Introduction

TBI sequelae typically affect all aspects of a patient’s future life: domestic, recreational, vocational, social, and personal. Any good life care plan must accomplish several important goals for a patient with TBI. It must serve to fully and clearly inform all parties to litigation about the rationale, including nature, extent, and frequency, for all the goods and services likely to be needed over a person’s life span. It must also serve to fully and clearly set out the associated costs in adequate detail. A life care plan also offers a critically important basis for the person and his or her family to fully appreciate the seriousness of the acquired impairments, likely complications, implications for independence and quality of life, and long-term care needs, whether for clinical or litigation purposes.

For some individuals and families, a life care plan is the first and/or most comprehensive explanation of the traumatic condition and its lifelong implications. A life care plan can also be a reality check, however, placing limits on the expectations that claimants and families may develop in regard to the size and conditions of settlement. It necessarily follows that when all parties have a realistic appreciation of the nature of a condition, long-term implications, and associated realistic needs for goods and services as well as costs, early and reasonable settlements are facilitated.

Life care planners have a duty to develop a plan to assist attorneys, juries, and other health care providers in understanding the variety of special needs created by an injury and disability and how resources can be marshaled to meet those needs, including specialized care, assistive devices, medications, therapy, and environmental adaptation. In the course of preparing a plan, 1 or more of the attending physicians may be asked to work cooperatively with a life care planner in marshaling the medical evidence, identifying needs, and making lifetime prognostications. (For consistency, this article focuses on the nexus between the TBI life care planner and the physician, whether attending physician or independent expert physician. The authors recognize and acknowledge the important role of nonphysician health care professionals in life care planning, and it is appropriate for readers to infer that when physicians are referred to, it is reasonable to substitute or supplement this reference with other professionals, such as a psychologists, neuropsychologists, physiotherapists, occupational therapists, or nurses.) Alternatively, a physician who has had no prior therapeutic relationship with a patient may be retained as an independent expert by the plaintiff lawyer. Conversely, an independent expert may be retained to critically review a plaintiff’s life care plan for the defense or to help prepare a second life care plan by a planner retained by the defense. In either circumstance, it is essential that physicians understand their role within the context of both the clinical development of a life care plan as well as the medicolegal setting.

Inasmuch as a life care planner has more expertise than a clinician in developing such plans, it is entirely reasonable for a planner to point out areas of omission, deficiency, and/or impracticality in clinical recommendations. The physician’s role is one of expert resource and advisor to the life care planner: the physician and the planner are expected to act professionally at all times, offering impartial expertise—advocacy is never an appropriate role for an expert.

A life care plan should always be based on current standards of care and as much as possible on evidence-based practice. In a legal context, without the proper support from health care providers, a life care plan is not admissible in court. If a plan is not admissible, patients have no way of presenting vital evidence, and the result could be catastrophic: much-needed health care and ongoing support will never be considered by a jury and, thus, denied to a deserving patient.

A physician is asked by a life care planner (and later by lawyers) if the items included in the plan are reasonably necessary to manage a given injury. The physician must be guided in those opinions by conscience, professional judgment, clinical practice guidelines, and scientific evidence. The life care planner and the person with TBI depend on the physician being informed, thoughtful, deliberate, and scientifically consistent in arriving at opinions and then standing by them. A secondary consideration is that a physician will lose credibility in a courtroom for recommending an item as necessary, only to abandon that claim while under the close scrutiny or challenge of a cross-examination. The overarching goal of a physician should be to provide and recommend comprehensive, quality care for a patient. For these reasons, that goal can be achieved in litigation only by a physician who is competent, deliberate, strong, and resilient enough to withstand cross-examination.

Introduction

TBI sequelae typically affect all aspects of a patient’s future life: domestic, recreational, vocational, social, and personal. Any good life care plan must accomplish several important goals for a patient with TBI. It must serve to fully and clearly inform all parties to litigation about the rationale, including nature, extent, and frequency, for all the goods and services likely to be needed over a person’s life span. It must also serve to fully and clearly set out the associated costs in adequate detail. A life care plan also offers a critically important basis for the person and his or her family to fully appreciate the seriousness of the acquired impairments, likely complications, implications for independence and quality of life, and long-term care needs, whether for clinical or litigation purposes.

For some individuals and families, a life care plan is the first and/or most comprehensive explanation of the traumatic condition and its lifelong implications. A life care plan can also be a reality check, however, placing limits on the expectations that claimants and families may develop in regard to the size and conditions of settlement. It necessarily follows that when all parties have a realistic appreciation of the nature of a condition, long-term implications, and associated realistic needs for goods and services as well as costs, early and reasonable settlements are facilitated.

Life care planners have a duty to develop a plan to assist attorneys, juries, and other health care providers in understanding the variety of special needs created by an injury and disability and how resources can be marshaled to meet those needs, including specialized care, assistive devices, medications, therapy, and environmental adaptation. In the course of preparing a plan, 1 or more of the attending physicians may be asked to work cooperatively with a life care planner in marshaling the medical evidence, identifying needs, and making lifetime prognostications. (For consistency, this article focuses on the nexus between the TBI life care planner and the physician, whether attending physician or independent expert physician. The authors recognize and acknowledge the important role of nonphysician health care professionals in life care planning, and it is appropriate for readers to infer that when physicians are referred to, it is reasonable to substitute or supplement this reference with other professionals, such as a psychologists, neuropsychologists, physiotherapists, occupational therapists, or nurses.) Alternatively, a physician who has had no prior therapeutic relationship with a patient may be retained as an independent expert by the plaintiff lawyer. Conversely, an independent expert may be retained to critically review a plaintiff’s life care plan for the defense or to help prepare a second life care plan by a planner retained by the defense. In either circumstance, it is essential that physicians understand their role within the context of both the clinical development of a life care plan as well as the medicolegal setting.

Inasmuch as a life care planner has more expertise than a clinician in developing such plans, it is entirely reasonable for a planner to point out areas of omission, deficiency, and/or impracticality in clinical recommendations. The physician’s role is one of expert resource and advisor to the life care planner: the physician and the planner are expected to act professionally at all times, offering impartial expertise—advocacy is never an appropriate role for an expert.

A life care plan should always be based on current standards of care and as much as possible on evidence-based practice. In a legal context, without the proper support from health care providers, a life care plan is not admissible in court. If a plan is not admissible, patients have no way of presenting vital evidence, and the result could be catastrophic: much-needed health care and ongoing support will never be considered by a jury and, thus, denied to a deserving patient.

A physician is asked by a life care planner (and later by lawyers) if the items included in the plan are reasonably necessary to manage a given injury. The physician must be guided in those opinions by conscience, professional judgment, clinical practice guidelines, and scientific evidence. The life care planner and the person with TBI depend on the physician being informed, thoughtful, deliberate, and scientifically consistent in arriving at opinions and then standing by them. A secondary consideration is that a physician will lose credibility in a courtroom for recommending an item as necessary, only to abandon that claim while under the close scrutiny or challenge of a cross-examination. The overarching goal of a physician should be to provide and recommend comprehensive, quality care for a patient. For these reasons, that goal can be achieved in litigation only by a physician who is competent, deliberate, strong, and resilient enough to withstand cross-examination.

Medical contribution to the TBI life care plan

Life care planners come from varied backgrounds, including nursing, rehabilitation counseling, psychology, medicine, occupational, speech and physical therapy, and social work. Each life care planner presents a unique set of professional experiences and knowledge of specific disabilities. As in any field of practice, some life care planners have extensive training in life care planning methodology and knowledge specific to TBI whereas others are generalist life care planners with little training and limited knowledge of TBI. A seasoned life care planner with extensive knowledge of TBI is able to guide the discussion with the physician to ensure full and adequate consideration of all areas of future needs. Ideally, standards of practice should be adhered to as with any health care discipline or scientific methodology.

For a physician working with a life care planner, it is important to understand the planner’s experience in developing life care plans for the individual with TBI. Conversely, the life care planner wants to understand the physician’s training and experience in TBI assessment and care. If the treating physician cannot provide the needed basis and support for the life care plan, an independent expert physician may be needed. The American Academy of Physical Medicine and Rehabilitation states that the broad medical expertise of physiatrists allows them to treat disabling conditions throughout a person’s lifetime.

In working with a life care planner, a physician is asked to consider areas beyond lifelong medical care and the prevention of complications. The life care plan also addresses issues, such as therapy and durable medical equipment–related services, in the context of attempting to preserve a durable outcome for an injured party relative to productive lifestyle activities, support services, equipment needs for safety and care, therapeutic recreation, quality of life, and impact of aging. It is important for a physician working with a life care planner to understand some of the basic concepts of life care planning. Life care planners generally function under a set of guiding principles that are built around the practice of rehabilitation. Philosophic tenets that form the foundation for life care planning are outlined in Appendix 1 .

A well thought-out life care plan may necessitate considerable dialogue between a physician and life care planner. Physicians consulting with a life care planner must understand not only the rationale for each specific recommendation but also the relationship between each item in the plan. Life care planning is multidimensional, because each recommendation potentially affects other recommendations and elements of the plan.

The range of future care needs varies greatly depending on the severity of the TBI. Regardless of injury severity, the methodology used to examine future needs should be the same across all life care plans. An advising physician must always avoid commenting on matters that fall outside that physician’s scope of practice. Instead, it is reasonable and necessary to defer to other clinicians (for example, a psychiatrist defers when asked for expected orthopedic interventions or neuropsychological testing frequency and follow-up recommendations). An advising physician must be aware of all recommendations from other specialists that fall within that physician’s scope of practice and must be prepared to comment, when appropriate, on causal relationship and medical necessity.

Life care plan domains relevant to TBI casework

When examining core components of a TBI life care plan, several critically important domains must be considered, including the following.

Supporting recommendations with adequate science

A physician who is reviewing a life care plan for a patient with TBI should be aware that the plan’s recommendations must always follow current evidence-based literature. Where such evidence is lacking, recommendations should be based on published guidelines or consensus opinion based on local and regional community standards of practice. Personal experience as a justification for recommendations should be avoided because it typically increases the likelihood of a legal challenge (ie, Daubert challenge) and increases the potential that testimony on said opinions or even all testimony by that expert is excluded. Drawing solely on anecdotal evidence is a dangerous practice from a medicolegal perspective: most clinicians have had limited experience with cases specific to the issue in question and, beyond that and more important, the practice is unscientific with substantial room for various forms of bias.

Two levels of qualification are required of any expert testifying regarding a life care plan. First, the expert must be qualified generally in the area that he or she is opining on; and second, the expert must be qualified to substantiate—to the degree required under the particular jurisdiction’s substantive law—the need for each element of care provided in the plan. Typically, the court and triers of fact look not only to the life care planner for such foundation but also to the physician who has endorsed the specific medical recommendations. (It is uncommon, but not unheard of, for a physician to obtain certification as a life care planner and thus to be able to both prepare and endorse a plan.) Therefore, the expert who is analyzing the scientific foundation of individual recommendations within a life care plan should be familiar with legal evidentiary rules and the nature of clinicolegal opinions relative to how these are interpreted and weighed by the triers of fact.

Under the US Federal Rules of Evidence, witnesses may establish their qualifications as an expert by reason of “knowledge, skill, experience, training, or education.” Federal Rule 702 was written as a general grant of authority for the use of expert testimony and is, therefore, permissive in nature. Furthermore, Rule 702 stipulates that a witness who is otherwise qualified as an expert may testify in the form of an opinion or otherwise if (1) the expert scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (2) the testimony is based on sufficient facts or data; and/or (3) the testimony is the product of reliable principles and methods and the expert has reliably applied the principles and methods to the facts of the case. Skills or knowledge that may be drawn on are not limited to scientific and technical areas alone but extend to all specialized knowledge. Expert testimony is generally proper in any scientific field that has reached a level of general acceptance. Most courts have at least implicitly recognized that life care planning itself has reached such a degree of general acceptance as to be the proper subject of expert testimony. Thus, expert testimony is generally permitted in conjunction with a life care plan.

A lack of adequate factual foundation likely results in an expert’s testimony stricken as based on speculation. Such an issue may arise if, for example, a life care planner intends to testify regarding the cost of certain treatment, but no medical evidence has been proffered to indicate that such treatment is reasonable, necessary, or caused by the relevant accident or mishap (eg, substandard care). Such foundation objections likely are considered in cases where objections to a life care planner’s qualifications have been overruled (the general legal defense principle is to attack the legitimacy of both the message and the messenger). The speculative nature of a life care plan can also preclude its admissibility if the plan involves new or experimental treatments or novel theories of causation.

All opinions need to be stated with a degree of probability. Occasionally, the term, degree of certainty , is used by lawyers and judges; however, case law does not differentiate degree of certainty from degree of probability relative to a difference in statistical thresholds for the likelihood of the occurrence discussed. Both terms are used to indicate that an event is more likely than not to occur. More specifically, when stating something with a degree of medical probability, it simply means that the chance of the occurrence of that condition is greater than 50%. To make such statements, adequate evidence is needed. Unfortunately, many opinions of this nature are provided without adequate scientific foundation.

Individuals with a brain injury who are suing for damages (ie, claimants) have the burden of establishing that the pertinent admissibility requirements are met by a preponderance of evidence. The specific criteria for admitting scientific expert testimony explicated by Daubert are (1) whether an expert’s technique or theory can be or has been tested—that is, whether the expert’s theory can be challenged or refuted in some objective sense or whether it is simply a subjective conclusion that cannot reasonably be refuted or assessed for reliability; (2) whether the technique or theory has been subject to peer review and publication; (3) the known or potential rate of error of the technique or theory when applied; (4) the existence and maintenance of standards and controls; and, (5) the degree to which the technique or theory has been generally accepted in the scientific community. Not all of the specific Daubert factors can apply to every type of expert testimony. The Daubert challenge strategy is increasingly used to challenge both life care planning and medical professional testimony in brain injury cases. When an expert purports to apply principles and methods in accordance with professional standards, yet reaches a conclusion that other experts in the field would not reach, the trial court may reasonably conclude that the principles and methods have not been faithfully applied. In such cases, any step that renders the analysis unreliable also render the expert’s testimony inadmissible. This is true whether the step completely changes the reliable methodology or merely misapplies that methodology.

Scientific evidence is relevant when there is a valid scientific connection to the pertinent inquiry as a precondition to admissibility. It is of utmost importance to point out that ethically, medicolegally, and morally, if a clinician or life care planner is to testify regarding a claimant who is alive, then that individual has an obligation to directly examine the party involved in the litigation and not base testimony solely on review of the medical records. Peer reviews should be used internally by the requesting party, and such reviews should not be substituted for direct examination and/or serve as a basis for testimony. One exception to this rule is in death cases; however, in such situations, a life care plan generally is irrelevant, although there are always exceptions. In such death cases, issues of lost wages, loss of consortium (loss of consortium is considered a valid claim in the United States but is not recognized by Canadian courts), pain, and suffering as well as other issues might be relevant from a forensic and clinicolegal standpoint.

Ideally, unless a life care plan is authored by an appropriately qualified physician, which is rarely the case, the plan must faithfully cite the medical sources for all specific medical recommendations. In addition, the overall plan should be endorsed by a physician to provide additional bolstering to the life care planner’s opinions on medical necessity and the causal relationship with the litigated issues. When a life care planner can also justify recommendations with scientific publications that are methodologically sound or publications that summarize such data, such as reference textbooks, then the opinions are further supported and that much more incontrovertible.