Personal Injury Attorneys San Francisco

LIFE EXPECTANCY OF THE CATASTROPHICALLY INJURED CHILD: HANDLING THE DEFENSE EXPERT

Handling an action involving a catastrophically injured child is often times fraught with difficulties. Not only must plaintiff's counsel overcome diverse liability hurdles, but ultimately, damages awarded by a judge or jury may be severely reduced due to a determination of shortened life expectancy.

In essence, defendants hedge their "liability bets" with forecasts of shortened life expectancy. Where liability is established, exposure for significant future medical damages is nonetheless reduced if defendants' experts' prognosis of shortened life expectancy is adopted by the jury.

Of course, certain injuries may indeed result in a greater probability of diminished expected lifetime. However it is the quantum of reduction that is of true concern. A jury's adoption of the wrong forecast in this regard will serve to deprive the plaintiff of the very funds s/he may need the most. Tragically, the deprivation of funds due to a misplaced adoption of a shortened life expectancy may cause a true reduction of the child's life.

Since late 1987, and with increasing furor through the 1990's, defendants have turned to a relatively small, although growing cadre of experts who base their forecasts on the so-called "statistical approach". Experts employing this approach tend to rely on four primary publications for support.

Without fully reviewing the basis for the conclusions set forth in the aforementioned publications, the statistical approach to prognosis of life expectancy carries significant jury appeal.

First, it dehumanizes the injured plaintiff. The plaintiff ceases to exist as a living, breathing, human being with needs, and instead becomes a statistical number to be compared with other numbers, each purportedly representing, by category, other individuals similarly situated.

Secondly, the defense expert relying on the statistical approach may garner credibility with the court and/or jury by "humbly" conceding that while s/he is not prescient enough to fully predict the life expectancy of plaintiff with certainty, the probabilities derived from the statistical approach reflect a greater population and are therefore more accurate and trustworthy than other more individualized approaches.

Lastly, the unwary plaintiff's counsel, in a rush to emphasize the tragic injuries sustained by their client, may lend credibility to the defense expert's forecast of shortened life expectancy.

Fortunately, in most instances, these problems can be overcome. This article is written in order to suggest some practical approaches, which if employed appropriately, should help to establish the flawed nature of the statistical approach, thereby assisting the jury to a true resolution of the life expectancy issue.

The Statistical Approach

Without lending credibility to the statistical approach, counsel are warned that proper cross-examination of adverse experts (or treating doctors) utilizing this approach, requires a thorough understanding of the methodology employed, and underlying classifications, which lead to the statistical probability of remaining expected life. While this article does not present an exhaustive review of the aforementioned publications, counsel are urged to review each (case specific), early in the prosecution of an action involving a catastrophically injured child.

In two of the four publications, subjects were persons who received services from the California Department of Developmental Services. All subjects had severe disabilities, and were to varying extent mentally disabled. Furthermore, these publications categorized the subjects based on certain characteristics (depending on article) including mobility, rolling, hand use, arm use, toileting skills, eating skills, tube feeding, and ambulation.

After categorizing the subjects based on these characteristics, a statistical methodology was employed to "estimate" lengths of survival. Simply put, by determining the number of persons living to a particular age (with given characteristics and disabilities), the authors statistically gained a probability "estimate" of the number of such persons expected to survive to the age of interest.

While at first blush appearing to represent a formidable blend of statistics with the medical sciences (pediatrics, neurology, etc.) the statistical approach is not immune from attack, and it is not difficult to point out shortcomings of the approach in plain language that all in the courtroom can understand.

Attacking the Basis of the Statistical Approach

First, counsel must carefully scrutinize the data relied upon in the statistical approach. In the same two publications referred to above (see fn. 5), the characteristics of the subjects were obtained from Client Development Evaluation Reports. These Reports are compiled by the California Department of Developmental Services once a year, and are used, among other things, for placement purposes and not biostatistics.

From these Reports, the authors derived virtually all of the information regarding characteristics used to categorize a particular individual in a table of projected life expectancy. From the Reports, information regarding such factors as degree of brain damage, age, sex, race, toileting skills, eating skills, mobility, etc., were determined. Since it was an agency of the State of California that compiled the raw data for its own internal purposes, it is unlikely counsel will ever face an expert having had any role in the gathering of the raw data, in the review of the raw data, or in comparing the raw data to the Reports themselves.

Indeed, it is doubtful that any expert using those studies, will have ever talked with, examined, or reviewed the informational basis for the studies; to wit; the medical records of the subjects involved.

Secondly, counsel should examine the expert regarding the total number of subjects actually utilized in the compilation of the life expectancy table.

For example, the whole population basis reviewed in the two publications noted above, was approximately 100,000. However, the authors excluded all subjects that could walk, reducing the study population to approximately 7,000. The 7,000 were further divided, by category of characteristics, in various tables. Due to a mix of characteristics, some subjects did not "fit" in any category and were simply excluded.

Lastly, the publications under discussion fail to identify the causes of the catastrophic injury, whether traumatically induced or progressive metabolic disease. Nor have the authors determined the ultimate causes of death for the subjects involved. Indeed none of the publications address the cause and effect relationship, if any, between the disabilities and the death. For obvious reasons, this point is not to be understated.

Establishing Your Plaintiff as Lying Outside the Statistical Tables

Humanizing the plaintiff is an important presentational aspect of any case. It is perhaps most important in the case of a catastrophically injured child. In determining future damages, the jury must necessarily determine life expectancy. The plaintiff gets no second chance.

With good medical care, many catastrophically injured children stand a strong probability of a reasonably long life expectancy. Such children are normally not at risk for such life shortening activities caused by smoking tobacco, drinking and driving, etc. Good medical care, however, is a necessary pre-requisite.

Plaintiff's expert must strive to discuss the individual attributes of the plaintiff. Numerous characteristics, including respiratory problems, or lack thereof, should be reviewed. Necessarily, plaintiff's expert must review all medical records and physically examine the plaintiff.

Often times, defense experts utilizing the statistical approach will fail to physically examine the plaintiff. Instead, after a review of plaintiff's medical records, such expert will attempt to neatly categorize the plaintiff, by characteristics, into one of the life tables contained in the publications discussed above.

Where possible, counsel should force defendant's expert to concede that the plaintiff lies outside the life tables. In many instances, this concession is not difficult to obtain. Because of the limited number of subjects actually utilized in the compilation of the life tables, the publications themselves concede that certain subjects fell outside of the life tables. Counsel are urged to gain this concession from defendant's expert during deposition, before trial.

Attacking the Credibility of the Expert

At the outset, it is important that plaintiff's counsel recognize the authors' intended goals for the publications employing the statistical approach.

For example, during a jury trial in Illinois occurring on September 19, 1991, Richard Eyman, Ph.D. (testifying for the defense), admitted that the first draft of his co-authored article entitled, The Life Expectancy of Profoundly Handicapped People With Mental Retardation, supra, at fn. 4, listed as one of its purposes, use in the medical legal arena including medical malpractice lawsuits. Dr. Eyman went on to testify that the aforementioned "purpose" was taken out of the final version of the ultimately published article.

Similarly, during the recent trial of Wright v. St. Rose Hospital, Alameda County Superior Court Action No. H-168081-2, Herbert J. Grossman, M.D. (testifying for the defense), admitted that earlier drafts of the same article did contain as an intended purpose its use in the medical malpractice arena. Moreover, Dr. Grossman admitted that his work as an expert witness had been almost entirely for the defense since the publication of such article. Lastly, he admitted that his expert witness services had grown expediently since publication.

Secondly, since the expert pool adopting the statistical approach is relatively small, counsel should fully explore the amount of medical legal work performed by the expert, and the percentage of retention on behalf of defense interests. Perhaps more so than in any other area, experts adopting the statistical approach appear uniformly to be tied to the defense. Indeed, certain experts have carved out a profitable career in this area.

Lastly, do not lose track of the qualifications of the expert. Is the expert a biostatistician? Is the expert an internist? Is the expert a computer programmer? Is the expert a pediatric neurologist? The qualifications of the expert alone may determine the admissibility of the statistical approach in determining future life expectancy.

Conclusion

The use of the statistical approach in determining future life expectancy of catastrophically injured children has been misplaced. The basis for the conclusions drawn by the studies is suspect since no review of the underlying data was made by qualified medical personnel. The conclusions are also suspect since they purport to draw statistical significance from a pool of subjects which are craftily chosen, and no acceptable reasons are provided for exclusion of others. By highlighting these deficiencies one can attempt to dissuade adoption of the statistical approach and focus, instead, on the specific nature and characteristics of the child.

1. Compounding the losses associated with medical care (care the child will need if s/he outlives defendants' life expectancy forecast), are the medical care cost growth rates which have risen astronomically. The Consumer Price Index Detailed Report, January, 1995, Presidential Study, placed the annually compounded medical growth rate, overall, between 1950-1994 at an average of 6.2%. The breakdown, by medical category; Medical Care Services - 6.6%; Professional Services - 5.9%, Medical Care Commodities Prescriptions and Drugs - 3.8%; Hospital Room and Related Services - 9.3%.

2. Depending on the forecast, a child's parents may be unable to care for the child (due to the parents' age or death) at the time funds exhaust. Moreover, and as will be discussed below, infra, longevity of a catastrophically injured child's life may be dependent upon the quality of the future medical care.

3. Perhaps most commonly seen are Herbert Grossman, M.D. and Richard K. Eyman, Ph.D., although the demand of defendants has made room for additional experts employing the "statistical approach".

4. See, Eyman R.K., Grossman H.J., Tarjan G., Miller C.R., Life Expectancy and Mental Retardation: A Longitudinal Study in a State Residential Facility, Washington D.C.; American Association on Mental Deficiency; 1987:7; Monographs of the American Association on Mental Deficiency; Eyman, R.K., Grossman, H.J., Chaney R.H., Call T.L., The Life Expectancy of Profoundly Handicapped People With Mental Retardation, N.Engl.J.Med. 1990; 323:584-589; Eyman R.K., Olmstead C.E., Grossman H.J., Call T.L., Mortality and the Acquisition of Basic Skills by Children and Adults With Severe Disabilities, Amer.Journ.Dis.Child., February 1993; Eyman R.K., Grossman H.J., Chaney R.H., Call T.L., Survival of Profoundly Disabled With Severe Mental Retardation, Amer.Journ.Dis.Child., March, 1993, p. 329.

5. The Life Expectancy of Profoundly Handicapped People with Mental Retardation, supra; Survival of Propounding Disabled With Severe Mental Retardation, supra, fn. 4.

6. Conversely, counsel may wish to keep certain concepts "complex", thereby allowing the defense expert to confuse the jury with the statistical methodology employed. This will help reinforce the human aspects of plaintiff's case and lend credibility to plaintiff's experts' individualized treatment of the issue.

7. Woodward v. Trupin, Circuit Court of the Sixth Judicial Circuit, Champaign County, Illinois, Case No. 88-L-251.

8. This case involved a brain damaged, spastic quadriplegic young child fed through a gastrostomy. The defendant failed to timely diagnose bacterial meningitis. Despite Dr. Grossman's testimony, it was determined the nine-year-old child had another 56 years life expectancy. Randall H. Scarlett tried the case on behalf of minor plaintiff.