Professional Liability Defense Federation 5 th Annual Meeting - Washington D.C. September 2014

 A tool which can be used to estimate future medical and related costs for catastrophic and chronic injuries.

 Plan changes as the individual and his/her treatment changes.  If conditions, situation change, impacts future needs.  Whether plaintiffs condition improves or worsens.

 Is past treatment necessarily predictive of future needs? ◦ Any studies to support that claim? ◦ Anecdotal evidence to the contrary - experience with Medicare Set Aside agreements.  Will the science/treatment change?  How about costs, interest, life expectancy?  Do life care planners have crystal ball to know how?

 The BiOM Ankle System from iWalk  The Power Knee from Ossur  The Proprio Foot from Ossur  The Symbionic Leg from Ossur combines the Proprio powered ankle and the Rheo microprocessor knee  The iLimb from Touch Bionics.  The Bebionic from Steeper is an advanced myoelectric prosthetic hand  The Boston Digital Arm System from Liberating Technologies supplies the necessary torque for a variety of tasks, with on- board software for control.

Intrepid Pup shows off prosthetic paws

 American Association of Nurse Life Care Planners - AANLCP® recognizes the Nurse Life Care Planner as the Registered Nurse (R.N.) who assesses, identifies problems, plans for appropriate interventions, implements and evaluates the plan in the Nurse Life Care Planning process. AANLCP® promotes the professional practice that the Registered Nurse delivers to the life care planning process

“Experts?” “Experts?”

 Not retained to treat plaintiff.  Training: ◦ In Nursing ◦ Psych training ◦ Rehabilitation training ◦ Chronic pain training  Have they ever cared for this type of patient? - brain injury, burns, spine, amputation, birth injury, other?  Have they made a life care plan for this type of patient?

 Is it beyond scope of license to make a determination as to diagnosis?  Nursing vs. medical diagnosis  Can the life care planner prescribe?  Establish that their report is only as good as the information provided by other experts on which they rely.

 What information from plaintiff’s counsel?  What information from plaintiff’s PCP?  What information from plaintiff’s surgeons?  What Information from plaintiff?  Other sources of information as to future care needs?

But, what does the patient say? But, what does the patient say?

◦ Which medical records were relied on? ◦ Pharmacy records obtained from all pharmacies and providers? ◦ What info on durable medical goods (DMG) used? ◦ How current is the plan?

 Where acquire costs information for treatment?  How determine to be usual and customary?  Consider other suppliers, facilities, pharmacies, or sources for averages in calculating cost of plan?  Are there fee schedules, billing agreements, etc which suggest future costs are lower?

Is treatment necessary? Is treatment necessary?

 Challenge with opinions defense experts ◦ Physicians ◦ Psych experts ◦ Pharmacist ◦ Economist ◦ Annuity specialist ◦ Life Care Planner

◦ Focus on whether treatment is necessary ◦ If so, for how long? ◦ Alternatives to specific treatment ◦ Alternatives to entire plan

 Analyze reasonableness of current drug use  Analyze reasonableness of future drug use  Alternatives  Costs

 Reasonable and Necessary?  Does plaintiff use all drugs which are prescribed now? ◦ Is he/she compliant and current?  Are there cheaper alternatives now?  Will there be cheaper alternatives in the future?  Generics?

 Where injury suffered by the plaintiff is permanent, damages based on the probable duration of the plaintiff’s life must be supported by evidence of what that lifespan might be.  The majority of courts use mortality tables that apply actuarial statistics to “suggest an average life expectancy for a person of a given age and sex.”  The majority view is that mortality tables are not conclusive evidence on the issue of life expectancy or binding upon the jury. Instead, the tables “may be considered in connection with other evidence bearing on the probable life expectancy of the plaintiff, such as health, habits, occupation, and other activities.”

Sometimes referred to mortality tables, death charts or actuarial life tables, this information is strictly statistical. It does not take into consideration any personal health information or lifestyle information. This information has been provided by the US Census and Social Security Administration.

 “The current dollar value of a future amount” or the sum of money “that would have to be invested today earning a given interest rate over a specified period to equal the future amount.” ◦ Trained to calculate present value? ◦ Where is present value in plan? ◦ How was it calculated?

◦ Present Value ◦ Life expectancy  Qualified to discuss co- morbidities?

◦ Hire to assist with critique of plan ◦ Review methodology of plaintiff’s planner ◦ Create a defense plan to be introduced to fact finder?

Have a Great Evening! Have a Great Evening!

Paul Catsos is a partner at Thompson & Bowie, LLP, a defense firm which is a member of Themis Advocates. His practice focuses on civil litigation, including professional liability, products liability, food and medical devise claims in both Maine and New Hampshire. He is also Maine's President to the Tri-State Defense Lawyers’ Association and an Adjunct Assistant Professor at the University of New England's College of Pharmacy. He graduated from Cornell University in 1982 and Suffolk University Law School, where he graduated cum laude in 1989.