In two prior S2KM blog posts (Part 1 and Part 2), Wendie A. Howland, MN, RN-BC, CRRN, CCM, CNLCP, LNCC, a nationally recognized life care planning expert, has helped to explain why life care planners increasingly impact multiple overlapping markets including structured settlements, personal injury settlement planning, special needs planning, and Medicare set-asides (MSAs).
In this blog post, which concludes the interview series, Wendie responds to criticism of life care planners promulgated by some attorneys.
The following criticisms appear in this online copy (beginning page 32) of a July 10, 2014 presentation titled "The Affordable Care Act: Taking a New Approach to Damages" by attorneys Caryn L. Lilling and Thomas R. Shimmel at the American Conference Institute's 13th Annual "Advanced Forum on Obstetric Malpractice Claims."
Ms. HOWLAND: Before I respond to specific criticism, let me say that some of the criticism below may result from lack of understanding or familiarity with nurse life care planning as opposed to life care planners whose underlying credential is vocational rehabilitation or related fields, and who may use proprietary software to produce canned life care plans. My responses apply to certified nurse life care planners and, more specifically, to me.
CRITICISM: Life care planning is a profession sponsored by the plaintiff's bar.
Ms. HOWLAND: I do approximately half of my expert work as a life care planner on the defense side. If a defense attorney made this criticism, you can send him or her my contact information and I would be happy to help them also.
CRITICISM: There is no government licensure or government endorsed certification for life care planners in most states.
Ms. HOWLAND: This criticism indicates unfamiliarity with life care planning, professional licensure, and certification in general. It is true that there are no states that license any form of life care planners or that endorse any certification program for life care planning. However, all states do license, regulate, and endorse registered nurse practice, the basis for certification and practice in nurse life care planning and which mandates RNs’ nursing assessment, planning, and treatment of human response to illness or injury. Non-RN life care planners who do personal assessments and form opinions that exceed the scope of practice of their basic licensure often rely on other professionals’ imprimatur for their plans, and attorneys often take such endorsement as a guarantee of comprehensiveness and accuracy. This practice does not represent a wise or informed decision. By comparison, RN legal scope of practice fully encompasses what we do as evidenced by the Certified Nurse Life Care Planning Certification Board requirements for the CNLCP examination.
CRITICISM: Life care planners' "expert testimony" is raw hearsay and largely fictions.
Ms. HOWLAND: The rules of evidence are clear that we and other experts are entitled to rely upon documents, such as medical records and opinions from other disciplines, about the status and care of individuals when forming our opinions. This is not hearsay. As to any implication that I would lie under oath at deposition or trial, I have no wish to dignify it with further comment.
CRITICISM: Life care plans are not based on real economic or medical data.
Ms. HOWLAND: A good and proper life care plan is based on research about items and services that will be reasonably necessary. This includes using medical records. It also includes literature searches for the most current applicable research-based guidelines, with appropriate citations, and current pricing in today’s dollars obtained from named sources, e.g., vendors or suppliers.
CRITICISM: Life care planners purposely ignore past actual medical expenses and costs.
Ms. HOWLAND: It is not that we ignore past costs. A life care plan is, by definition, for the future. I cannot predict - for example, that any past agreement on discounts or write-offs will continue. My role is to look at future needs and give today’s costs and let a qualified medical economist calculate future costs. Further, when medical bills are on a self-pay basis, as they will be post settlement, negotiations with providers are usually not possible. Self-pay rates are substantially higher than plan reimbursement rates.
CRITICISM: Life care planners do not know the average life time costs for normal individuals.
Ms. HOWLAND: Many good sources exist for current costs of everything under the sun. Examples: you can look up the costs of raising a child from birth through college, home ownership vs. rentals, home maintenance, transportation, clothing, food, utilities, preventative medical and dental care, long-term care, and just about anything else you can think of. This criticism could imply that there should be offsets for these items against any increased costs related to an injury. Some life care planners, for example, will subtract the average cost of an unmodified van from the cost of a van modified. The litigating attorneys should sort out these types of issues. The injury victim might have been a Zipcar user or a bicycling commuter who now needs a modified van is because he is a quadriplegic.
CRITICISM: Life care planning testimony (LCPT) is unfairly prejudicial and likely to mislead the jury because:
- CRITICISM: LCPT has no basis in fact.
- Ms. HOWLAND: Again, as to any implication that I would purposely attempt to mislead or lie under oath at deposition or trial, I have no wish to dignify it with further comment.
- CRITICISM: LCPT is not substantiated by national statistics.
- Ms. HOWLAND: National statistics related to what? As Tip O’Neil famously said, all politics is local. When I estimate future costs, I look at local suppliers and facilities when at all possible. If I need to rely on a national database for particular information, e.g., the U.S. Renal Data Systems for information on renal failure, dialysis, and transplantation, or the National Vital Statistics Report for life expectancy (required, by the way for MSAs), or the National Spinal Cord Injury Statistical Center for outcomes on different levels of spinal cord injury, I will.
- CRITICISM: LCPT is not supported by past costs.
- Ms. HOWLAND: Past costs are no guarantee of future costs, or even today’s costs. “Today’s dollars” represent the best and most appropriate benchmark. Let the economists do the prognostications.
- CRITICISM: LCPT is designed to create the largest possible award rather than actual recognized cost.
- Ms. HOWLAND: A responsible life care planner should provide the sources of every cost for every item in the plan, in today’s dollars. Using an old canned database without personal assessment and current cost sourcing is not standard of practice. Many persons holding themselves out as life care planners, including physicians, do their clients a disservice because they do not know enough about assessing future needs. I routinely critique plaintiff plans and sometimes tell my defense clients, “If this is all they’re asking for, write the check with a smile, because it’s very inadequate for this person.”
S2KM: Wendie, thank you for participating in this three part interview which is also featured on the structured settlement wiki.