Medical Malpractice
Birth injuries sometimes result in permanent physical and mental disabilities. Children with cerebral palsy, HIE, and similar conditions will require a lifetime of medical care, therapy, and support services.
The extent of care and support services each child will need varies based on the type and severity of their condition.
A life care plan can help establish the anticipated long-term financial impact of caring for a child with a birth injury or a disability.
Life care plans have been generating more substantial cost projections because of rising medical care costs and inflation, which allows a life care planner to reasonably project larger numbers.
What is a Life Care Plan?
A life care plan is a comprehensive legal report that (a) analyzes and evaluates the child’s specific injuries, (b) outlines all of the future medical care and services that the child will need throughout his life, and (c) estimates the total cost of providing that care. A life care plan outlines everything the disabled child will need and how much it will cost.
Life care plans are created based on input and formal opinions from medical experts and other specialists. Medical experts develop a treatment plan outlining the care and services the child should receive based on his specific injuries and condition.
This typically includes medical treatment (e.g., surgery, medications, etc.), educational support, rehabilitative therapy, mobility aids, and other support services. The plan also includes a detailed cost estimate for each treatment, service, medication, etc.
In birth injury lawsuits, life care plans give plaintiffs and their lawyers a definitive estimate of economic damages. A life care plan gives the plaintiff a comprehensive summary of the impact of the birth injury on their family.
In a birth injury lawsuit, a good life care plan can be used in settlement negotiations and at trial as evidence of damages. Expert cost projections offer parties a knowledgeable initial reference point for facilitating a suitable resolution through negotiations.
Components of a Life Care Plan
There is no required format for a life care plan. However, you will find specific critical components in any life care plan.
- Introduction/Summary: Most life care plans start with a summary or introduction section. The introduction basically just describes the child’s injuries and outlines how the life care plan was prepared.
- Medical History: You will find this in any life care plan. The medical history section provides a detailed narrative of the child’s initial injury, diagnosis, and subsequent course of treatment. This section is often very detailed and is drafted based on a review of the available medical records. The medical history section is crucial because it sets the table for estimating what treatment and services will be required and how much they will cost. The future medical needs and support services a child will require can vary significantly depending on the unique nature of the child’s injury. The medical history section thoroughly explains the specific type of injury and the resulting physical and/or mental impact of the injury.
- Summary of Costs: This section is usually just an outline list of all the various types of medical care and/or services the child will require in light of his injury. The total estimated costs of medical care and other services are usually provided along with an itemized statement of costs by type and time frame. For example, the summary of costs section may begin with a total overall cost estimate, followed by a cost breakdown of various categories (e.g., medications, testing, therapy, counseling, etc.). Some plans provide further itemized costs estimates for each category (e.g., for “medications,” a detailed list of each separate medication and its cost).
- Explanation of Costs: This report section offers another level of detail for each cost item. The explanation of costs section goes through each treatment, medication, or service in all the categories. For each item, the report briefly explains what it is, why it is necessary, and how much it will cost.
- Sources & References: At the end of the life care plan, there is usually a section similar to an index that lists the sources used for the cost estimates in the report. This usually includes current pricing and fees from providers showing the costs of medications or diagnostic tests. It can also include healthcare cost estimates in 3rd party studies, reports, and/or previous expenses from prior treatments. Finally, most reports end with a list of all the medical records and other documents reviewed to prepare the life care plan.
What Types of Things Are Included in the Care Plan?
Life care plans aim to be comprehensive and generally include all reasonably necessary medical treatments, services, and other items. Cost items often seen in life care reports can include:
- Medical treatments, procedures, or surgeries
- Required medications
- Mobility aids and adaptive equipment (wheelchairs, learning aids, etc.)
- Mobility modifications to the home (wheelchair ramps, lifts, handrails)
- Physical and occupational therapy
- Educational assistance or support services (speech therapy, tutoring)
- In-home medical care/assistance
- Transportation expenses (wheelchair van, etc.)
- Lost lifetime wages/income
Do You Need an Economist If You Have a Life Care Planner?
A life care plan expert projects annual life care plan costs, while an economist adjusts those projections to account for anticipated future inflation on an annual basis.
The economist’s expertise is in determining the appropriate inflation rate – which is higher than it has been in years right now – and calculating future annual costs to provide accurate and competent annual life care plan costs to adequately compensate the victim. So the economist must present credible evidence of the discount rate used to determine the present value of the future damages.
How Do Economists Determine the Appropriate Discount Rate?
Historical medical inflation data is reported by the Bureau of Labor Statistics. Medical inflation is a component of the overall inflation rate reported in the United States and contributes to approximately 6.5 percent of the overall inflation rate.
Medical inflation comprises two main cost components: (1) medical care services (MCS), accounting for roughly 75 percent of medical inflation, including physician services, hospitalization, and non-physician services, and (2) medical care commodities (MCC), making up the remaining 25 percent, including prescription and non-prescription medicine, durable medical equipment, and supplies.
This stuff matters. Because sub-components within MCS and MCC may experience significantly varied historical inflation rates. This is a crucial consideration for economic experts projecting future life care plan costs with inflation, and it requires some judgment. The inflation rate assumption should align with the types and weighting of costs included in the life care plan and should not be based solely on the overall inflation rate or the overall medical inflation rate, which do not reflect the mix of costs in the life care plan.
How Does Life Expectancy Affect a Life Care Plan?
Life expectancy can have an enormous impact on the final cost of a life care plan. Many expenses in a catastrophic birth injury case are recurring costs. Attendant care, medications, therapy, medical supplies, physician visits, and equipment replacement may continue every year for the rest of the child’s life.
So your life care planner needs a medically supportable life expectancy assumption. In some cases, the child’s physicians may expect a normal or near-normal lifespan. In more severe cases involving profound neurological impairment, recurrent respiratory problems, feeding difficulties, or other complications, the defense will argue for a shorter life expectancy. This is probably the biggest battlefield over damages in cerebral palsy and other birth injury cases.
Every year matters in calculating damages. If attendant care costs $175,000 or $200,000 a year, even a ten-year disagreement over life expectancy can change the projected cost of care by millions of dollars.
Example Life Care Plan for a Child With Severe Cerebral Palsy
The following is a (simplified) example of what a life care plan might look like in a serious birth injury lawsuit. This plan is for a 7-year-old child with severe spastic quadriplegic cerebral palsy.
John Doe
Age: 7 years
Primary diagnosis: Severe spastic quadriplegic cerebral palsy following hypoxic-ischemic brain injury
Functional status: Dependent for transfers, dressing, bathing, toileting, meal preparation, and most mobility
Mobility: Power wheelchair with positioning system; assisted transfers
Communication: Limited verbal communication with augmentative communication device
Projected needs: Lifetime medical surveillance, therapy, adaptive equipment, personal attendant care, accessible housing and transportation, and periodic hospitalization and surgical treatment
Projected Lifetime Care Costs
John Doe
Age: 7 years
Primary diagnosis: Severe spastic quadriplegic cerebral palsy following hypoxic-ischemic brain injury
Functional status: Dependent for transfers, dressing, bathing, toileting, meal preparation, and most mobility
Mobility: Power wheelchair with positioning system; assisted transfers
Communication: Limited verbal communication with augmentative communication device
Projected needs: Lifetime medical surveillance, therapy, adaptive equipment, personal attendant care, accessible housing and transportation, and periodic hospitalization and surgical treatment
Projected Lifetime Care Costs
| Category | Projected Care | Frequency / Basis | Lifetime Cost |
|---|---|---|---|
| Primary Medical Care | Primary care visits, routine examinations, preventive care, vaccinations, acute illness visits | Approximately 4 to 6 visits annually, with increasing complexity in adulthood | $610,000 |
| Specialist Care | Neurology, physiatry, orthopedics, gastroenterology, pulmonology, nutrition, developmental medicine | Multiple specialist visits each year throughout life | $1,050,000 |
| Hospitalizations & Surgery | Orthopedic procedures, contracture releases, hip reconstruction, feeding tube procedures, respiratory admissions, postoperative care | Periodic major procedures plus intermittent hospital admissions | $2,600,000 |
| Physical Therapy | Range of motion, positioning, strengthening, transfer training, prevention of contractures | 2 to 3 sessions weekly during childhood with continued maintenance therapy in adulthood | $4,200,000 (Total for all therapies) |
| Occupational Therapy | Activities of daily living, upper extremity function, adaptive technology, seating and positioning | 1 to 2 sessions weekly with periodic reassessment | (Included above) |
| Speech Therapy | Speech therapy, swallowing evaluation, augmentative communication training | Ongoing through childhood and periodically thereafter | (Included above) |
| Medications | Antispasticity medication, seizure medication when indicated, gastrointestinal medication, analgesics, respiratory medication | Daily medications with periodic changes and monitoring | $1,350,000 |
| Durable Medical Equipment | Power wheelchairs, backup manual wheelchairs, seating systems, standers, patient lifts, hospital bed, bath equipment, communication devices | Replacement generally every 4 to 7 years depending on the item | $1,450,000 |
| Orthotics & Positioning | AFOs, hand splints, positioning braces, specialty shoes and related equipment | Frequent replacement during growth, then periodic replacement as an adult | $620,000 |
| Accessible Housing | Wheelchair accessible bathroom, widened doorways, ramps, ceiling lift system, accessible bedroom, flooring modifications | Initial modification plus major replacement and renovation cycles | $1,150,000 |
| Accessible Transportation | Wheelchair accessible van, ramp or lift system, tie downs, adaptive controls and maintenance | Vehicle replacement approximately every 7 to 9 years | $1,020,000 |
| Personal Attendant Care | Assistance with bathing, dressing, toileting, feeding, transfers, positioning, medication administration, mobility and nighttime needs | Increasing from part-time assistance during childhood to approximately 12 to 16 hours of paid care daily in adulthood | $10,800,000 |
| Case Management | Coordination of medical care, equipment vendors, therapies, home services, insurance issues and community resources | Ongoing throughout life | $780,000 |
| Educational Support | Special education support, assistive technology, tutoring, transition services and supported vocational programming | Childhood through transition into adulthood | $650,000 |
| Diagnostic Testing | MRI, radiographs, laboratory testing, swallow studies, pulmonary testing and other periodic assessments | As clinically indicated throughout life | $720,000 |
| Medical Supplies | Incontinence supplies, feeding supplies, skin care items, disposable medical supplies and replacement accessories | Monthly and annual recurring expenses | $550,000 |
| Respite Care | Temporary relief for primary caregivers, emergency coverage and supplemental supervision | Intermittent throughout childhood and adulthood | $750,000 |
| Total Illustrative Lifetime Life Care Cost | $28,300,000 | ||
Life Care Planner’s Summary
Based on the child’s neurological impairment and resulting functional limitations, the child would be expected to require substantial medical, therapeutic, assistive, and custodial care throughout his or her lifetime. The big piece of most of these life care plans is the cost of attendant care, and it explains many of the big verdicts and settlements you see in birth injury cases. A child who cannot independently bathe, dress, or safely remain alone may require paid assistance for decades.
The projected lifetime cost of care is $28.3 million. Another $4.2 million is allocated to physical, occupational, and speech therapy. Hospitalizations, surgeries, medications, etc. account for much of the remaining cost.
Example of How Individual Costs Are Calculated
For example, assume the planner concludes that the child will require an average of 14 hours of paid attendant care per day as an adult. If the reasonable current cost of that care is approximately $35 per hour, the current annual cost would be approximately $178,850:
14 hours per day × $35 per hour × 365 days = $178,850 per year
That annual expense may continue for decades. This is how one category of care can produce a multimillion-dollar lifetime projection without assuming an extravagant level of treatment. The same methodology is applied separately to therapy visits, medications, wheelchairs, hospital beds, and other reasonably necessary items.
Why the Final Economic Damages Number May Be Different
The $28.3 million shown above represents an illustrative life care cost projection. It is not necessarily the final number an economist would present to a jury. A life care planner generally determines what care will be needed, how often it will be needed, and its current cost. An economist then addresses the financial side of the calculation, including future medical inflation, wage growth for attendant care, the timing of future expenses, and any legally required reduction of future damages to present value.
How the Defense Attacks a Life Care Plan
The life care plan we present will always be attacked. And, of course, their lawyers will hire their own experts and attack both the amount of care recommended and the cost assigned to that care.
Some of the most common disputes involve the number of hours of attendant care the child will need, whether care must be provided by a nurse or can be provided by a lower-cost aide, how frequently therapy should continue, how often wheelchairs and other equipment will need replacement, whether future surgeries are reasonably probable, and, as we talk about above, what life expectancy should be used. Projecting how health care costs will rise also often becomes a major dispute between the life care planner and the economist.
There can also be a fight over whether the life care planner has stayed within his or her expertise. A planner generally should not invent medical recommendations. The strongest plans tie each major future need back to the child’s physicians, therapists, medical records, and accepted standards of care.
That is why we get deep in the weeds when it comes to a life care plan. A $28 million life care plan is a shocking amount of money that gets a lot less shocking when the jury can see exactly how the expert got there than when an expert simply walks into court with a largely unexplained bottom-line number.
Contact Miller & Zois About Your Child’s Birth Injuries
If a birth injury has disabled your child, contact the lawyers at Miller & Zois for a free investigation and evaluation of your case. We can explain whether you have a malpractice claim and, if necessary, prepare a life care plan for your child.
Call us at 800-553-8082 today or get a free online consultation.