The Life~Future Care Cost Analysis & It’s twisted role today… Clae Willis MSc MHA CLCP CRTWC CVE FAAPM
Overview of Presentation: Flow 1. FCC’s in the BIG Picture 2. Legal Standard 3. Definitions & concepts 4. Purpose of a (LCCA ~ FCP) Life Care Cost Analysis/ Future Care Plan(Basic Process to Preparing a LCCA) 5. Steps to a Critique 6. The four P’s (Provable, Possible, Probable, Practical) 7. My Report Structure and Layout 8. Concluding thoughts
The BIG Picture • In many circumstances the dollar value awarded for future cost of care is the majority of the settlement • MacNeil v Bryan $18.4 million dollar judgement 2009 CANLii 28648 ON SC • Over 15 million of the 18.4 million compensated for future cost of care (Paying for the Future: An Analysis of Large Awards for Future Care Costs, McCague Borlack LLP, Jim Tomlinson and David Olevson)
Setting Standards Schrump et al. v. Koot et al. 1977 CanLII 1332 (ON CA) • “In the area of the law relating to the assessment of damages for physical • injury, though it may be necessary for a plaintiff to prove on the balance of probabilities that the tortious act or omission was the effective cause of the harm suffered, it is not necessary for him to prove that future loss or damage will occur, but only that there is a reasonable chance of such loss or damage occurring. Speculative and fanciful possibilities unsupported by expert or other cogent evidence can be removed from the consideration of the Trier of fact and should be ignored, whereas substantial possibilities based on such expert or cogent evidence must be considered. This principle applies regardless of the percentage of possibility, as long as it is a substantial one, and regardless of whether the possibility is favourable or unfavourable. Thus, future contingencies which are less than probable are regarded as factors to be considered, provided they are shown to be substantial and not speculative: they may tend to increase or reduce the award in a proper case. “
Setting Standards Cont… • Only necessary to prove there is a reasonable chance loss or damage will occur • Possibilities unsupported by expert or other cogent evidence should be ignored, whereas substantial possibilities based on such expert or cogent evidence must be considered • Thus, future contingencies which are less than probable are regarded as factors to be considered, provided they are shown to be substantial and not speculative
What’s Reasonable? • With Life Care Plans, Canadian courts have suggested four levels of care. The first level is subsistence, or what a plaintiff can simply make do with. Second, is what may be described as community care; OHIP. The third level is full compensation. Fourth, is the highest level of care possible, which includes all the care, housing, and hardware a victim could wish for or absorb. Lawyers often refer to this as the “Cadillac” future cost of care plan. In Andrews v. Grand & Toy, the Supreme Court of Canada endorsed the third level; one of “full compensation”.
Definition and Concepts (D & C) “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 Costs; for Individuals who have experienced Catastrophic Injury or have Chronic Health Needs.” (Source: Combined definition of the University of Florida at their 2nd Annual Life Care Planning Conference, the International Academy of Nurse Life Care Planners, presented at the Forensic Section Meeting, NARPPS Annual Conference, Colorado Springs, Colorado and agreed upon April 3, 1993).
D & C Cont… Recommendations are supported by medical data and foundation, the treatment plan, relevant literature and current clinical practice guidelines. Differences in plans typically result from the differences in clinical knowledge amount the life care planners, differences in experience and/or plan development that does not consider the standards of practice .
Purpose of a Life Care Cost Analysis We have attempted to establish (client’s name) level of functioning through the application of a series of well- standardized evaluations. On the basis of the results from these evaluations, information gleaned from the interview and the medical documentation supplied by (the referral source), we have formulated estimates of the future care needs, their costs and any other extraordinary living expenses.
Purpose of a Life Care Cost Analysis When estimating what we consider to be reasonable needs and costs, we have identified first and foremost medical necessities. Secondly, we have identified those requirements necessary for the maintenance of health, dignity and respect for a disabled and handicapped person. In doing this we have recognized the need for various assistive devices and services to promote (client’s name) independence. Finally, we have identified those requirements necessary for reconstructing (client’s name) lifestyle to one of maximum personal development and fulfillment.
Purpose of a Life Care Cost Analysis That the identified need should attempt, as far as possible, to reconstruct (client’s name) lifestyle to what it was prior to the accident. A corollary of the principle is that the identified need should provide for restoration of the quality of life of the individual.
Reintegration to Pre MVI status In theory, a claim for the cost of future care is a pecuniary claim for the amount which may reasonably be expected to be expended in putting the injured party in the position he would have been in if he/she had not sustained the injury. Obviously, a plaintiff who has been gravely and permanently impaired can never be put in the position he/she would have been in if the tort had not been committed. To this extent, restitution in interim is not possible. Money is a barren substitute for health and personal happiness, but to the extent within reason that money can be used to sustain or improve the mental or physical health of the injured person it may properly form part of a claim. Contrary to the view expressed in the Appellate Division of Alberta, “there is no duty to mitigate, in the sense of being forced to accept less than real loss” (Supreme Court Dickson, January 1978).
Purpose of a LCCA / FCP Settlement of a file…satisfactory to all
Basic Steps to Produce a Life Care Cost Analysis or Future Care Cost Plan 1. Review of medicals pre & post. 2. Direct interview(s) with the client and relevant family. 3. Direct consultation with relevant assessing and treating regulated health professions. 4. Preparation of logical report including: Recommendations all referred to a Regulated Health • Professional within their scope of practice and currently relevant. Costs are reasonable, real and geographically relevant or follow • the FSCO Guidelines.
Critiquing a Plan - Overview Review of the Assessor • General Concepts of Critique • Review of the Chart (Pre-Accident Opinions, Diagnosis Opinions, • Prognosis Opinions, Recommendations Opinions, Vocational Opinions, Alternate Opinions) The Concept of Extraordinary • The Value of the Recommendations (Provable, Possible, Probable, • Practical) Review of the Math • Creation &/or Inclusion of Alternate Mitigating Recommendations •
The Value of the Recommendations vs. the Planner The Assessor • When evaluating or reviewing a life care plan, it is important to critique or review the plan not the planner, and consider the “opposing” professional as a colleague (Walker 2006). For example, the ethical issue of disparaging remarks has been addressed for Certified Rehabilitation Counsellors and can be found in the Commission on Rehabilitation Counsellor Certification Code of Professional Ethics for Rehabilitation Counsellors, section D.7.a. (CRCC, 2002; Barros-Bailey & Neulicht, in press).
Rule 53 There are concerns about unqualified and biased experts in civil cases, which eventually resulted in amendments to Rule 53 of the Rules of Civil Procedures. The new rule now requires that an expert complete an Acknowledgment of Expert’s Duty; which includes a statement that the expert will “provide opinion evidence that is related only to matters that are within my area of expertise”.
Review of the Plan The Structure • Structure of report. Purpose of report? How many interviews were conducted? Are there duplicate TORT vs. AB charts? • Review of the areas covered- In relation to the type of disability has the assessor covered the necessary areas? • Is the Future Care Cost Analysis a glorified Occupational Therapist In-Home Assessment • Are the charts easy to follow / is there a clear logic?
The Actual Recommendations he Recommendations-line by line(Steps to a Critique) Rationale & validity • Source & evidence • Cost & specificity …Should each recommendation for aid or service • be geographically specific and costed individually?? Duration & duplication – overlaps • Are they returning to pre accident life style • Are the recommendations excessive • Do they take into consideration the feasible success of the treatment • or the natural aging process
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