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Life Care Plans as a Settlement Tool
When your client has long-term medical needs, life care plans can be used effectively in negotiations, but only if you recognize when to prepare and present them.
July 2019An injured client’s needs may extend for years beyond the incident—and in catastrophic cases, indefinitely. To prove and support these needs as an element of your damages case, a life care plan is essential. Whether your clients will require treatment or medical intervention for the rest of their lives or require lifestyle and home modifications as a result of their injuries, the life care plan can help quantify and prove the long-term costs of your clients’ injuries. But you can use life care plans beyond just proving damages during trial—you also can use them when negotiating with insurance adjusters.
A life care plan is a strategic proposal compiled by an appropriate professional to address an injured party’s current and future needs.1 Most certified life care planners have backgrounds in occupational therapy, rehabilitation, nursing, case management, social work, professional counseling, psychology, physical therapy, medicine (including chiropractors and nurse practitioners), special education, or speech pathology.2 To obtain certification, life care planners must demonstrate a working knowledge of medical systems, associated disabilities, and the treatment and maintenance protocol required for a person with catastrophic disabilities to live within an acceptable comfort level.3
Selecting a Planner
Life care plans are needed in cases involving catastrophic injuries with recommendations for lifelong as well as long-term treatment and especially when the injured party is a child. Long-term treatment can include additional surgeries, rehabilitation, 24-hour care, and continuing treatment for emotional and psychological trauma.
The injuries determine what type of life care planner you should retain. When your client was treated for various injuries by multiple medical providers, select someone with the experience and expertise to develop a plan that will be irrefutable and that addresses all of your client’s future medical needs.
For example, if your client has suffered psychological trauma—such as post-traumatic stress disorder—not just physical injury, select a life care planner with experience in the mental health profession. Someone who has experience developing plans that only address physical injuries likely would not be a good fit for that client. This planner’s opinion that your client would benefit from ongoing mental health treatment is likely to hold more credibility than a similar opinion from a life care planner who doesn’t have the requisite experience.
Talk to your client about post-injury limitations, whether mental or physical, to aid in this determination.4 Review your client’s medical records to get a sound understanding of his or her injuries. Also speak to the treating physicians directly to get clarification as to the extent of your client’s injuries, any level of permanent impairment, and what future treatment will be necessary.
You also may want to send written medical questionnaires that specifically ask about your client’s injuries and future treatment. The document also should require the physician to sign, date, and answer the questions to a reasonable degree of medical certainty. Though you may already know the answers to your written questions from your phone conversation, these formal responses will help your life care planner develop an appropriate plan and help to establish that your client’s treating physicians agree with the plan.
Armed with a sound understanding of your client’s injuries and signed medical questionnaires from your client’s physicians, you can start contacting potential life care planners. Ask them about their experience and expertise to determine whether they can develop a plan that will pass the scrutiny of insurance adjusters and defense counsel.
Plan Fundamentals
A good life care planner delves into the facts and minute details and uncovers the long-term effects of your client’s injuries. Life care plans quantify potential future medical costs, as well as the cost of home care aids and home modifications to ensure your client’s lifelong needs are met. Home modifications may include reaching tools, automatic chair lifts, wheelchairs, bath seats, side-entry bathtubs, wheelchair ramps, prosthetics, and handicap-accessible vehicles.
If your client was paralyzed in a car collision and has stairs in his house, some of these items will be necessary. If your client now has a limited range of motion in her arm and is short, certain tools and accommodations, such as step stools and devices that assist with reaching items from high shelves, also should be factored into the plan. Your life care planner must learn about your clients’ pre- and post-incident lifestyle, the challenges they are facing post-incident, and the items that clients believe may improve their quality of life.
Don’t forget that the cost of these future needs that your life care planner quantifies should be discounted to present value to avoid losing credibility with insurance adjusters. For example, a young man who sustained a back injury in a car crash may be a good candidate for a spinal cord stimulator if injections and conservative treatment prove to be ineffective. Talk to the life care planner about whether to quantify the future costs of a spinal cord stimulator using today’s present value rates rather than future rates, even though the man may not need surgery for several years. This protects the integrity of the life care plan and prevents the defense from arguing that the rates were inflated or questionable.
Send the plan to your client's treating physicians along with draft letters for them to sign that indicate they reviewed the plan and agree with its medical recommendations.
If your client’s physician has recommended surgery during litigation, for example, the plan should reference the specific surgical recommendation and include the costs of surgery, anesthesia, post-operative medications and care, and rehabilitation. This can ensure that your client obtains a settlement that allows him or her to receive the treatment needed at the appropriate time.
Have the client’s treating physicians review the life care plan. Send the plan to them along with draft letters for them to sign that indicate they reviewed the plan and agree with its medical recommendations.
A life care plan can often change the course of an insurer’s review of your client’s claim. If the life care plan shows that your client’s damages surpass what can be offered by an entry-level adjuster, the claim is automatically reassigned to a more senior adjuster who may be able to offer a settlement that reflects the true extent of the damages.
For example, insurers may assign entry-level adjusters in car crash cases if they believe the damage or injuries are not severe. However, if you later provide with your demand a life care plan demonstrating that your client’s injuries will lead to future medical treatment, your case almost certainly will be reassigned to an insurance adjuster who has greater settlement authority.
Timing and Presenting the Plan
At what point should you retain a life care planner? As with many things, the answer is “it depends.” It often is useful to retain a life care planner after presuit negotiations fail and during the discovery stage of litigation. However, your last presuit demand must be high enough to leave room for your life care planner’s recommendations.
For example, if you introduce a life care plan that lists your client’s future medical expenses that greatly exceed your last demand, you may lose rapport with the insurer—it will question the validity of the life care plan and you as a negotiator. However, if your presuit demand was in line with the subsequently introduced life care plan, the plan may be just what is needed to get the insurance representative to settle the case for the figure you previously demanded.
Getting a life care plan put together early can ensure you are prepared to counter insurers’ and defendants’ inevitable tactics to diminish the long-term costs of your client’s injury. Initially, present a standard settlement demand package to the insurer that contains a thorough recollection of how the injury occurred, clear illustrations of injuries, and an organized compilation of your client’s damages.
However, have a life care plan ready to be introduced if and when the insurer disputes your damages claims. Introducing a life care plan with your demand early in the case can be harmful because the insurer may attempt to negotiate down from the future medical cost figure in the life care plan. Introducing a life care plan later may incentivize the insurer to increase the offer.
Once defense counsel has been retained and in advance of any mediation or alternative dispute resolution conferences, present your life care plan to the insurance carrier. Both defense attorneys and lower-level insurance adjusters submit evaluations of cases to upper management to set the reserves for settling the case.
Waiting to provide a life care plan at mediation often will thwart the adjuster’s ability to obtain any authority above what was requested before arriving at the mediation. If your client’s past medical costs exceed the adjuster’s last offer on the case, emailing the adjuster a life care plan on the eve of mediation will not give him or her enough time to obtain authority to set the reserves anywhere near the amount of your demand at mediation. Likewise, presenting the life care plan on the eve of a trial or too late into the litigation may cause insurance carriers to question the plan’s legitimacy and the plaintiff’s need for the additional treatment and aids.
Late introduction may also subject your life care plan to objection, depending on discovery rules and court scheduling orders. Parties must supplement their disclosures “in a timely manner” upon finding new information.5 And if a party fails to do that, it cannot “use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless.”6 Presenting the life care plan within a sufficient time before mediation or during discovery affords the claims professional the opportunity to incorporate the plan’s recommendations into the valuation of the case.
If you go to mediation, incorporate the life care plan into a slideshow of your client’s post-incident challenges. Include visual demonstrations of how the aids that the plan calls for will assist your client. The slideshow should contain a combination of photographs that depict the aids that are needed and text describing the costs of the aids. While displaying the slides, focus on why the aids are needed.
You may even want to record a video of your client’s treating physician supporting the legitimacy of the plan and explaining that the plan’s recommendations are in line with his or her medical recommendations. Video footage of a physician who is well-credentialed and who can give articulate, concise, and convincing opinions can do wonders for resolving your client’s case before deposition. It also allows the adjuster to see your client’s treating physician in action without being cross-examined by defense counsel.
A life care plan is a useful tool that, when prepared and presented at the right time to insurers, can allow you to settle your client’s case early while still adequately compensating for all future medical needs and costs.
Tyler D. Bailey is the founder and managing attorney of Bailey Law Firm in Columbia, S.C. He can be reached at tyler@baileylawfirmsc.com
Notes
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The International Conference on Life Care Planning and the International Academy of Life Care Planners define a life care plan as a “dynamic document based upon published standards of practice, comprehensive assessment, data analysis, and research, which provide an organized, concise plan for current and future needs with associated cost for individuals who have experienced catastrophic injury or have chronic health care needs.” Int’l Ass’n of Rehab. Prof’ls, What is Life Care Planning?, https://connect.rehabpro.org/lcp/about/new-item/new-item5.
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Id.; Int’l Comm’n on Health Care Certification, Certified Life Care Planner, https://www.ichcc.org/certified-life-care-planner-clcp.html; Certified Life Care Planners are certified by the International Commission on Health Care Certification.
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Id.
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To gain further insight on the substance of life care plans and how to seek out a life care planner in your jurisdiction, see Nancy Boyd, Hiring a Life Care Planner, Trial 49 (Apr. 2017); David L. Kwass & Elizabeth A. Bailey, Protect Your Life Care Plan, Trial 52 (Apr. 2017).
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See, e.g., Fed. R. Civ. P. 26(e)(1)(A).
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Fed. R. Civ. P. 37(c)(1).