The National Trial Lawyers Top 100
MATA Member 2017 - Massachusetts Academy of Trial Attorneys
AV Kenneth I. Kolpan 2016
Million Dollar Advocates Forum
Multi Million Dollar Advocates Forum

Medicolegal Issues Regarding Lifelong Care

Kenneth I. Kolpan, JD (Editor)

AS THE INCIDENCE of long-term survival of persons with traumatic brain injury increases, the need for lifelong care may increase as well. Survivors of closed head injury are being returned to home or community centers seeking treatment to maintain or improve their condition. Lifelong treatment is expensive and often is not covered by Medicaid or Medicare or is only partially covered by private health insurance. With increased frequency, eligible survivors of closed head injury look to personal injury and workers' compensation litigation for payment for lifelong care. In order to recover payment for lifelong care, a jury or fact finder must be given the actual or estimated cost of needed lifetime care. How is that determined?

Lifelong care planning specialists who have a background in health care, rehabilitation, or medical economics assist in formalizing treatment plans for injured individuals. Experts, in consultation with medical personnel, design an appropriate treatment plan over the lifetime of the head-injured person. Protocol includes the nature of the treatment (speech therapy, occupational therapy, physical therapy, stimulation therapy), frequency of treatment (per week, per month, per year), an cost. Each treatment is tailored to the plaintiff's needs with consideration to his or her age. The nature and frequency of treatment is determined by the plaintiff's treating health care provider, and the cost is approximated from consensus of service providers in the plaintiff's geographic area. The cost figure is not the approved reimbursement rate, but rather the actual cost of the service being provided.

In addition to the above interventions, the protocol also includes equipment needs, from cotton swabs to wheelchairs, including medications. Each equipment item is given a useful life expectancy, then replacement cost is factored in.

A medical economist analyzes the lifetime cost of the protocol by using economic growth factors to account for the increased cost of treatments, supplies, and equipment over the individual's lifetime. The economist projects the total costs for lifetime care and converts it to cost in current dollars, or present value. It is the present value figure that is presented to the jury or fact finder for decision on an award.

Lifetime care plans are not easily understood by a lay jury. The jury scrutinizes the medical necessity of the proffered treatments and supplies, as well as the reasonableness of the cost. The jury assesses the present value of the lifetime care cost and determines if the economic theories that were relied upon to calculate it are sound. The length of the lifetime care plan is also questioned, since the life expectancy of the injured person may be debatable. For example, a person in persistent vegetative state has, according to some experts, a compromised life expectancy. Other experts say that the condition itself is not terminal, but the patient is subject to medical complications that, if left untreated, are fatal. Others argue that the possibility of medical complications for a person with a serious head injury does not shorten life expectancy, but instead it demonstrates the need for lifetime care to avoid the consequences from secondary medical complications. The jury, having determined the appropriateness, necessity, and reasonableness of the lifetime care plan, awards compensation to fund the needed treatment.

Lifetime care planning is an important aspect of rehabilitation of a person with a head injury, but it is an expensive one. Lifetime care planners play an important role in the rehabilitation process by defining a lifetime care medical model for persons with head injuries. If a jury agrees with the offered lifetime care plan, it will make an appropriate award, providing the injured individual with the freedom to choose a rehabilitation plan that will, hopefully, improve his or her quality of life.