Expert Witness in Litigation, Life Care Planning: Should This Be Part of Your Practice?

By Miki Fairley

"They told me he wouldn't make it." With a catch in her voice, Cathy Speciale Culver of Lusby, Maryland, describes going through almost every mother's nightmare.

Riddick-Grisham

The saga of Culver's son James, then age seven, began with a slight fever and ended with a triple amputation. A low-grade fever over a weekend had escalated to 104 degrees by Monday. Culver took him to their family physician, who said that James had a viral infection and advised over-the-counter pain relievers. James went to school Tuesday, but by 9:30 a.m., Culver received a call that James was in the nurse's office suffering from leg pains. Culver's doctor told her to take James to the hospital emergency room since the staff there could do blood testing. They then spent about eight hours in the emergency room; James received an IV for dehydration. "I asked the nurse about doing a blood test, and she said it wasn't her call," Culver recalls. "And the doctor declined to do a test, simply saying James had a viral infection."

James Culver recovers after suffering from toxic shock, which resulted in the amputation of three of his limbs. Photograph courtesy of Cathy Speciale Culver.

On Wednesday, James was miserable and lethargic. By Thursday morning he could barely walk. He almost collapsed after they entered the emergency room for the second time. He had almost no measurable blood pressure and presented with a rash on his arms and legs. This time a different physician examined James, diagnosed toxic shock, and gave his mother a grim prognosis. Culver and James were immediately flown to National Children's Medical Center, Washington DC, where, on Friday morning, he was put on life support. A blood culture revealed strep group A septicemia. James' limbs turned blue as his body sent blood to protect his internal organs, leaving his limbs to die.

James survived, but he underwent a right knee disarticulation, a left transtibial amputation, and a right transradial amputation. Almost five months later, in September 2006, including a two-and-a-half-month stay at a rehabilitation center, James and his mother returned home.

The case led to medical malpractice litigation against the hospital initially involved, which was settled out of court. Susan Riddick-Grisham, RN, CCM, CLCP, president of Life Care Manager, Richmond, Virginia, and vice-chair of the Board for the Foundation for Life Care Planning Research (www.flcpr.org), was chosen by James' legal team as its life care planner. Later, Culver asked Riddick-Grisham to be the case manager who would implement James' life care plan.

Order Out of Chaos

When individuals and families are struck with devastating, complex illness or injury, they are often overwhelmed. Figuring out what they need and how to navigate the bewildering labyrinth of the healthcare system is often beyond them. A life care planner and case manager such as Riddick-Grisham can help them bring order out of chaos and move ahead with their life and their healthcare.

Weed

Culver is lavish with her praise for how much Riddick-Grisham has helped her and James to access and coordinate care, identify and locate services and equipment—such as finding a van to transport James and his equipment—and plan and coordinate necessary home modifications. Seeing the progress of someone like James is one of the joys of Riddick-Grisham's profession.

A life care plan is "a dynamic document based upon published standards of practice, comprehensive assessment, data analysis, and research, which provides an organized, concise plan for current and future needs with associated cost[s] for individuals who have experienced catastrophic injury or who have chronic healthcare needs," according to the Life Care Planning and Case Management Handbook, Third Edition (September 2009, CRC Press), edited by Roger O. Weed, PhD, LPC, CRC, CDMS/R, CCM, FNRCA, FIALCP, and Debra E. Berens, PhD, CRC, CCM, CLCP.

Although this article primarily focuses on the use of life care plans in resolving legal issues, they also are valuable tools for rehabilitation planning, geriatric-services implementation, healthcare- funds management, discharge planning, educational planning, and long-term managed care.

Weed likened the life care planner to a general contractor for a building project. "The life care planner is the general contractor for the client's future care needs," Weed told The O&P EDGE. "He or she knows who to go to, what questions to ask, and when to bring in specialists, much like a contractor might bring in an engineer to solve a specialized problem."

When cases involve patients who will need ongoing O&P care, one of those "contractors" is an O&P clinician, and a number of O&P clinicians have added this type of consulting to their practices. But could this type of consulting work for you?

"Ladies and gentlemen of the jury..."

The O&P clinician serving as an expert witness in catastrophic injury or malpractice litigation may be called to the stand as a witness if the case goes to trial. If you are considering serving as an expert witness or as a consultant to a legal team or to a life care planner, there are a variety of things you need to consider.

First, it's important to consider whether serving as an expert witness/consultant can help you professionally. On the positive side, you can play a vital role in helping ensure lifelong appropriate care and resulting quality of life for persons who have suffered major injury requiring O&P care. You can expand your knowledge base, expertise, and range of services. Plus, expert-witness and consulting work can be highly lucrative.

However, this role is not for the casual and careless, the hot-tempered, the faint of heart, or those without considerable knowledge and experience in prosthetics and orthotics. Lengthy, painstaking work can be involved, and if a case goes to court, the opposing side likely will employ various tactics to get you to contradict yourself, lose your temper, or otherwise weaken your credibility. As one consultant noted, "In our adversarial legal system, that's the attorneys' job."

Various scenarios call for O&P expert witness or consulting skills; not all involve litigation, and the majority of cases involving litigation are settled out of court. Workers' compensation cases generally only require reasonably accurate treatment and cost estimates for the injured worker's care. Another scenario involves parents making arrangements in the event of their deaths for the care of their severely disabled child, who may be an adult.

If a case involves only prosthetic/orthotic care, the practitioner may directly give a deposition and possibly live testimony on the witness stand in court. However, since catastrophic injury cases can be complex, often a life care planner is brought in to develop a comprehensive plan that includes input from a variety of specialists. In these cases, the life care planner is usually the person called on for a deposition and live testimony if needed.

Life care planning emerged on the healthcare scene in the 1980s, a concept pioneered by Paul M. Deutsch, PhD, CRC, CCM, CLCP, FIALCP; Frederick A. Raffa, PhD; and Horace Sawyer, EdD, CRC, CLCP, among others. Since then, "Life care planning has grown to be an accepted and valuable component of rehabilitation," according to Pediatric Life Care Planning and Case Management (CRC Press, 2004), edited by Riddick-Grisham.

Two credentialing organizations now certify life care planners: the International Commission on Health Care Certification (CHCC) (ichcc.org) and the Certified Nurse Life Care Planner Certification Board (CNLCP™) (www.cnlcpcertboard.org).

Preparing a life care plan "is very intense work because there are so many issues to consider," Riddick-Grisham says.

"Some of these cases are extremely complex," Weed agrees. "For instance, in the case of traumatic amputations, there are likely other complications, such as brain injuries or burns. There may be perhaps ten different professionals involved. The life care planner has to put all his or her assessments and recommendations into one document organized in such a way that people can understand the big picture. And when you explain your plan to the client or family, they may have questions and disagreements."

Clients also can input into the plan. One client wanted to do wheelchair racing, Weed recalls; however, since Weed did not regard this as a medical necessity, this was noted in the plan as the client's request. This client had been using heating equipment to protect trees from freezing, and some of the fuel spilled on his legs and caught fire. His legs literally burned off before the flames could be extinguished. He was unable to effectively use prostheses and made a good case for activities like wheelchair racing that were not only fun but provide health benefits as well. "So we changed the name of that page in the plan from "recreation" to "health and strength maintenance." The client won his case and is now enjoying his new sport.

Another client's favorite recreation was hunting with family and friends, and he wanted to be able to continue. "I found an off-road vehicle that could accommodate a wheelchair. I told him I couldn't put this in the life care plan, but that he could." The client won the case, "and this was about the first thing he bought," Weed says. "It was at the top of his list."

Planners, Witnesses Confront Challenges

Depending on which side employs the life care planner, maintaining objectivity and integrity when confronted with pressure to exaggerate or minimize the cost and scope of the plan can be a challenge. The best defense, the interviewees agreed, is twofold: (1) always tell the truth as you see it, no matter who employs you; and (2) use the same methodology in assessing needs and costs, again no matter who employs you.

Riddick-Grisham says, "We teach participants in training programs to do the work...the same way on every case. The key to a good, reliable, valid life care plan is to follow a standard and accepted methodology...[that] has been published and reviewed by the field. If you deviate from that methodology, you're leaving yourself open to all kinds of problems." (Note: For more information on standards of practice and other information, visit the website of the International Association of Life Care Planners (IALCP), a section of the International Association of Rehabilitation Professionals (IARP), at www.rehabpro.org/sections/ialcp/ialcp-focus/standards).

Michael

"What I say to anyone interested in retaining my services is, 'I call it as I see it—whether you represent plaintiff or defense, I'm going to tell you the truth,'" says John Michael, CPO, MEd, FISPO, FAAOP, president of CPO Services, Portage, Indiana. "I tell them, 'If that's going to be a problem, then you don't want to retain me.'" He adds, "And a percentage choose not to retain me as soon as I make that statement."

The life care planner's accuracy, reasonableness, and honesty help build a valuable reputation in the field and among potential clients. "A good life care planner is one who follows published standard procedures and who has a history of doing that regardless of who pays him," Weed says. "I've been gratified that I've had a couple of cases in which both plaintiff and defense agreed to use me as the life care planner for the case. That doesn't often happen, but it meant a lot to me to realize they both assumed I would be fair and reasonable."

P&O Expert Witness: What's Involved

Riley

For prosthetists or orthotists who become expert witnesses either through being called on by an attorney or life care planner as the treating clinician, or because they want to expand their range of professional services, there are a few caveats, according to those who have "been there, done that."

"Most prosthetists/orthotists are not well acquainted with the legal process—they don't understand litigation and what is involved," says Rick Riley, CP, prosthetic consultant and owner of Prosthetic Consulting Technologies, Washoe Valley, Nevada. Riley's observation is echoed by others interviewed for this article.

Meier

"When prosthetists/orthotists are called on by a plaintiff or defense attorney to provide input into a life care plan, they may not realize how their expertise is going to be utilized," points out prosthetics expert Robert "Skip" Meier, III, MD. "They can get caught in the legal system because they are not used to dealing with it." Meier is a noted physical medicine and rehabilitation physician and life care planner whose practice, Amputee Services of America, Denver, Colorado, specializes in amputation care. His practice works closely with the Institute for Limb Preservation (www.limbpreservation.org) and its team of physicians and surgeons in a variety of disciplines.

First, as an expert witness/consultant, you may need to wade through stacks of records. For a typical case, Riley says he sorts through about two stacked feet of medical records and other documents. "I had one case that involved a stack about 14 feet high!" Riley recalls. However, in time, Riley says he has learned how to find and pick out what is relevant reasonably quickly. "But it's a learning curve at first."

Both Riley and Michael talk frankly about some mistakes they made early on.

At first, when Michael, as the treating clinician, would be contacted by a client's attorney, it seemed a simple task to write a short, cursory summary, since he was very familiar with the client's condition and treatment. However, when Michael discovered that what he viewed simply as a brief bit of information became the basis for arguments in court, settlements, and even part of life care plans, he realized he needed to approach the task more thoroughly. "I hadn't really thought through all the issues of predicting someone's costs over a lifetime. What I was doing was simply giving them a snapshot of what that person's care had been up to the point I had been treating them."

Michael then began to do research to learn more about accurate, valid care projections, including such factors as follow-up adjustments, repairs, maintenance, technology advances, the effects of a progressive disorder over time, the effects of aging, and the client's lifestyle and how it might change over the decades. "I began to be much more accurate in projecting lifetime needs."

Legal rules regarding the basis for cost projections in these types of cases vary by state, so "you have to be very careful that you know what the rules are and write your report based on those rules," Michael says. Often, an economist is brought in to help calculate lifetime projections, factoring in inflation rates and other aspects that impact future costs.

Both Riley and Michael point out that being expert witnesses for their own patients can backfire. "There is a perceived conflict of interest by the other side," Michael says. "They say, 'We're disregarding everything you say because you stand to benefit financially, and so you will recommend the most complicated, costly thing you can.' It's a hard argument to dismiss, even if you know that is not what you're doing."

Riley puts it bluntly, "I made the mistake once of being an expert witness for one of my clients—and did I get nailed! So I don't do that anymore."

An unexpected landmine for the unwary can be the deposition, which is the taking and recording of a party or witness under oath before a court reporter, away from the courtroom. The deposition is part of pretrial discovery and is primarily used by the opposing attorney to determine what the party's or witness' testimony will be if the case goes to trial. The defense uses the deposition to decide if it will settle the case or not. If the defense decides to settle, it uses the deposition to help determine the value of the case or what would have been the likely outcome if the case had gone to court.

Depositions can be grueling. Riley recalls a deposition that lasted over four hours; Meier says that he has had depositions that take an entire day. In contrast, any time spent on the witness stand will generally be far shorter than the deposition, even ones that are not as extreme. The opposing side likely will challenge your report and look closely at your credentials, Michael points out. "If you don't regularly read scientific journals and are not recognized in your field as a clinical expert, you are much more vulnerable than if you have a good resumé that shows not only that you are well-educated but also well-regarded by your peers." He adds, "You have to explain things clearly, concisely, and not lose your temper. If by the end of the deposition they have tried about 50 different ways to trip you up, show flaws in your reasoning, tire you out, or distract you, that's what good attorneys do. They are looking out for their client's best interest."

Meier advises witnesses to review their depositions before testifying to help them remember their previous testimony. In testifying, he says, "Use lay terms, or if you must use medical terms, explain them in lay terms so your testimony is understandable to the jury. When questioned, answer concisely, clearly, and to the point, and direct your answers to the jury, not to the attorney, since you are educating the jury."

One technique opposing attorneys use is trying to lead witnesses into areas outside their field of expertise, "They do that frequently because then they can question your credibility," Meier says.

"You need to be careful to stick to your own field," Michael warns. "For instance, if you give your opinion as to whether this person will need a re-amputation, you have destroyed your credibility in one sentence—the defense attorney will immediately point out that you are not a doctor."

Meier gives three ways prosthetists' and orthotists' credibility is enhanced: (1) years of experience in patient care; (2) a physician supports their recommendations; and (3) scientific literature supports their point of view.

Preparing the Report

Now 11 years old, James Culver is highly active and adapting well to his prostheses. He enjoys riding his Segway and "loves anything motorized," his mother says.

O&P clinicians may use various methods to effectively prepare their reports. For instance, Michael first reviews appropriate medical records to form an initial impression. Then, if he has permission, he contacts the treating clinician to discuss these assumptions and obtain his or her input. "I then prepare a draft report, which I prefer to discuss with the client himself if I'm legally permitted to do that." He then prepares his final report. "If litigation is involved, I insist that before giving a deposition or any testimony, that I examine the patient personally. However, in many instances all they want is an accurate report for settlement, and I can do that effectively and economically through telephone interviews with the treating clinician and the patient."

Meier, on the other hand, prefers to evaluate the patient and the prosthesis personally even if he's being called only as a prosthetics expert. "I might not agree with the prosthetic componentry or how the person was trained to use it." As a life care planner, Meier looks for whether or not the person is at the level of function that should be expected given his particular amputation and any comorbid factors, and if not, what is needed.

Priceless Rewards

At the end of the day, some of the most gratifying rewards don't come with a price tag.

Seeing your efforts as a life care planner or expert witness culminate in a brighter future for the persons with disabilities you have helped is arguably the finest reward of all.


Miki Fairley is a freelance writer based in southwest Colorado. She can be reached at