“Ethics in Life Care Planning - Litigated Cases and Ethical Issues”

1. “Ethics in Life Care Planning -Litigated Cases and Ethical Issues” Presented by: Michele J. Albers, M.S., L.P.C., C.R.C., C.L.C.P. Robert H. Taylor, M.A., L.P.C., C.R.C., C.D.M.S., C.L.C.P. Vocational Diagnostics, Inc. Phoenix, AZ • Denver, CO • Madison, WI www.vocationaldiagnostics.com

2. Objectives • Identify how multiple codes of ethics affect life care planning practice methods in a litigated case (state and federal courts); • Identify how to avoid ethical dilemmas in the litigated case; • Identify how to avoid problems with admissibility of opinions in the litigated case in both state and federal court, including risks of exclusion; and • Identify best practice methods to minimize conflicts that could lead to filing of an ethics complaint against the life care planner by another life care planner.

3. Life Care Plans in the Litigated Case • Increased Use of Life Care Planners To Establish Damages • Definition of Ethics • Applicable Industry Codes of Ethics • Expectations of the Court • Types of Potential Ethical Breaches and Violations • Specific Case Examples Demonstrating Potential Breaches and Ethical Violations • Avoiding Potential Breaches and Ethical Violations

4. Increased Use Of Life Care Planners • Life Care Planners are more popular than ever • Life care planning is transdisciplinary • More individuals working as life care planners thus creating: • Greater potential risk of breaches in ethical codes of conduct and an approach to life care plan development; • Increased risk of being seen as practicing outside one's scope of practice; and • Increased risk of exclusion by the Court as a potential consequence of such behavior.

5. Increased Use Of Life Care Planners(cont’d) • Increased numbers of people doing Life Care Plans create more competition; this may result in: • Potential questionable tactics to gain a perceived marketing advantage • Less consideration for the code(s) of ethics that apply to them • Perceived need to go extraordinary lengths to set oneself apart from other life care planners • Potential use of questionable methodologies in an attempt to enhance credibility • All of these factors can create an increased risk of potential breaches and violations

6. Increased Use Of Life Care Planners(cont’d) • Potential Consequences • Breaches in accepted protocols for Life Care Plan development • Increased risk of challenges as to admissibility of opinions and potential exclusion by the court under Daubert and/or other cases and/or limitations on testimony

7. Definition of Ethics • Can there be a definition of “Legal Ethics?” • Some say that “legal ethics” is an oxymoron!

8. Definition of Ethics(cont’d) • Legal Definition – Black’s Law Dictionary • A consensus of expert opinion as to the necessity of professional standards. Terms of behavior and guidelines among the members of a profession/ professional organization and their duties towards one another, clients and the public. • Medical Definition – Stedman’s Medical Dictionary • The rules or standards governing the conduct of a person or the conduct of the members of a profession

9. Definition of Ethics(cont’d) • Definition of Ethics (Merriam Webster) • a set of moral principles; a theory or system of moral values; a guiding philosophy; consciousness of moral importance • Definition of Ethical (Merriam Webster) • involving or expressing moral approval or disapproval; conforming to accepted standards of conduct

10. Examples of Applicable Codes Of Ethics for Life Care Planners • Definitions of Ethics also come from the certifying/credentialing bodies that one must comport with if they possess that certification/credential • Examples of codes of ethics from professional organizations and certifying/credentialing bodies: • AANLCP- Ethics Statement found in AANLCP Standards of Practice: • The NLCP is guided by the American Association of Nurse Life Care Planners, American Nurses Association, Association of Rehabilitation Nurses, and the American Association of Legal Nurse Consultants Code of Ethics. • The Nurse Life Care Planner adheres to the scope of practice of a Registered Nurse.

11. Examples of Applicable Codes Of Ethics for Life Care Planners (cont’d) • Commission on Rehabilitation Counselor Certification (CRCC)- Refer to Code of Professional Ethics for Rehabilitation Counselors: www.crccertification.com • International Academy of Life Care Planners (IALCP) Standards of Practice- Ethics Statement • Ethics refers to a set of principles of “right” conduct, a theory or a system of moral values, or the rules or standards governing the conduct of a person or members of a profession. • The primary goal of practice ethics is to protect clients, provide guidelines for practicing professional and to enhance the profession as a whole. • Within the Life Care Planning industry all practitioners are members of one or more professional disciplines and/or are licensed or certified. • It is expected that Life Care Planners follow appropriate relevant ethical guidelines within their areas of professional practice and expertise. • Life Care Planners are expected to maintain appropriate confidentiality, avoid dual relationships, adequately advise clients of the role of the Life Care Planner, and maintain competency in the profession.

12. Examples of Applicable Codes Of Ethics for Life Care Planners (cont’d) • International Association of Rehabilitation Professionals (IARP) Codes of Ethics, Standards of Practice and Competencies: www.rehabpro.org- applies to all members of IARP, IALCP and other IARP sections • International Commission on Health Care Certification (ICHCC)- applies to holders of Certified Life Care Planner (CLCP credential) CHCC Code of Professional Ethics: ichcc.org

13. Expectations of the Court Federal Court • The Daubert Standard (Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)). • Standard used by a trial judge to make a preliminary assessment of whether an expert’s scientific testimony is based on reasoning or methodology that is scientifically valid and can properly be applied to the facts at issue. Under this standard, the factors that may be considered in determining whether the methodology is valid are: • whether the theory or technique in question can be and has been tested; • whether it has been subjected to peer review and publication; • its known or potential error rate; • the existence and maintenance of standards controlling its operation; and • whether it has attracted widespread acceptance within a relevant scientific community.

14. Expectations of the Court(cont’d) Federal Court (cont’d) • Federal Rules Of Evidence Rule 702. Testimony By Expert Witnesses A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) The testimony is based on sufficient facts or data; (c) The testimony is the product of reliable principles and methods; and (d) The expert has reliably applied the principles and methods to the facts of the case. (As amended Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 26, 2011, eff. Dec. 1, 2011)

15. Recent Court Ruling on Daubert Challenge • Delisa Hale, Plaintiff, vs. Scott T. Gannon, et al., Defendants. • Cause No. 1:11-cv-277-WTL-DKL • United States District Court for the Southern District of Indiana, Indianapolis Division • 2012 U.S. Dist. LEXIS 125756 • Filed/Decided September 5, 2012

16. Recent Court Ruling on Daubert Challenge, cont’d • Defendants objected to Plaintiff’s Life Care Planner’s: • Qualifications; • Methodology; • Future Needs Analysis; • Cognitive Rehabilitation; • Medications; • Orthopedic Follow-Up; • Trigger point injections;

17. Recent Court Ruling on Daubert Challenge, cont’d • Defendants objected to Plaintiff’s Life Care Planner’s: • Relevance (based on plaintiff physician questionnaires); • “Plaintiff has provided no basis for the admissibility of the questionnaires. Unless they are admitted into evidence or a proper foundation for the necessity of treatment is otherwise laid, there will be no basis for the jury to find that the Plaintiff will need the treatments; therefore there will be no basis for (LCP) to testify about related costs.”

18. Expectations of the Court(cont’d) State Courts • At least 32 state court systems have embraced the Daubert Standard • Other states use the Frye Standard (Frye v. United States, 293 F.1013 (DC Circuit 1923)) or a hybrid of the two • Canada – The Supreme Court of Canada in R. v. Mohan (1992) 2 S.C.R. 9 notes • The importance of reliability of expert witness testimony; and • That expert evidence should not be admitted where there is a danger that it will be misused or will distort the fact‐finding process. • Fail to present opinions consistent with these standards as defined by the Court and pay the price!

19. Examples Of Potential Ethical Violations • Misrepresentation of: • Credentials • Areas of expertise • Ability to provide appropriate foundation for Life care Plan content • Data sources and research • Role in the case

20. Examples Of Potential Ethical Violations(cont’d) • Objectivity and Disclosure: • Nondisclosure of data sources • Selective disclosure of data • Selective use of medical opinions in support of Life Care Plan

21. Case Examples Demonstrating PotentialBreaches And Ethical Violations Misrepresentation of Credentials- Actual Case Example: • Action: • (Mis)representation of credentials in signature block of expert report: ____________, R.N., C.C.R.N. (C.L.C.P. - pending certification) International Commission on Health Care Certification (ICHCC)

22. Case Examples of PotentialBreaches And Ethical Violations(cont’d) Misrepresentation of Credentials- Actual Case Example: • Outcome: Credibility questioned at deposition • Excerpts from deposition transcript: TESTIMONY RE: CCRN: Q. Okay. Let's talk about the CCRN certificate.  Is that a certification? A. That is a certification. Q. Okay. Do you -- I just think I heard you say you are not a CCRN anymore? A. Correct. Q. Okay. At the time of the report, your report dated April 29, 2010, which is Exhibit 2. A. Uh-huh. Q. I believe you state in there you were a CCRN; is that correct? A. Well, I stated that, but I was on the – I misunderstood that certification wasn't still applied. Q. Okay. So you were not a CCRN on April 29th, 2010? A. That's correct.

23. Case Examples of PotentialBreaches And Ethical Violations(cont’d) Misrepresentation of Credentials- Actual Case Example: • Outcome: Credibility questioned at deposition • Excerpts from deposition transcript: Testimony re: CLCP: Q. You were obtaining your certification? A. Yes. Q. What certification is that? A. Life care planning certification. Q. Okay. When did you receive that? A. September of (year.) Q. September of (year)? A. (year). Q. All right. So at the time you drafted these reports, you didn't have your certificate? A. I had finished the programs through the (training program), but I had not sat for the examination through the Commission, Health Care Commission.

24. Case Examples of PotentialBreaches And Ethical Violations(cont’d) Misrepresentation of Role in Case: • Action: • Life care planner retained by defendant made ex-parte contact with at least 9 of plaintiff’s treating physicians and therapists in case involving traumatic brain injury • Represented that they were “involved in the case” • Solicited opinions regarding future care needs without authorization

25. Case Examples of PotentialBreaches And Ethical Violations(cont’d) Misrepresentation of role in case • Outcome: • Court Minute Entry stated: “Arguments by counsel regarding motion to strike expert witness, _______, and the specifics of nine ex-parte communications made by ______. . . . cited Campbell case, argued further as to conduct by _____ and advised this motion should be the subject of a motion in limine. . . . COURT RULED: I HAVE NO ALTERNATIVE BUT TO STRIKE THIS EXPERT AT THIS TIME . . .” • At trial, $7,500,000 awarded by jury for Life Care Plan • Total jury verdict: $16,907,382.

26. Case Examples of PotentialBreaches And Ethical Violations(cont’d) Practicing Outside of Your Area of Expertise: • If you are a C.L.C.P., can you render opinions regarding medical treatment? • Actual Case Testimony from a C.L.C.P.: Q. Do you believe you are competent to render medical opinions? A. Yes. Q. Do you believe a nurse can render an opinion as to future hospitalizations of likelihood for a quadriplegic? A. A nurse is certainly competent to render opinions in the area of health care needs for individual people and that may include hospital costs. Q. No, I didn't ask about costs. I was asking about future hospitalizations for quadriplegics. Do you believe you're competent to address that question in connection with (name)? A. Yes.

27. Additional Examples of PotentialBreaches And Ethical Violations(cont’d) • Ability to provide appropriate foundation for life care plan content • Is your license or certification enough for YOU to recommend the content of an item in a Life Care Plan? ARE YOU SURE? • Does your scope of practice allow you to make the recommendation? • If a recommendation is for a medical procedure, do you have a license to practice medicine? • If the recommendation is for a specific course of therapy, are you licensed to prescribe that therapy? • If the answer to any of the above is “no” you are at risk for:

28. BEING EXCLUDED BY THE COURT AND/OR HAVING AN ETHICAL COMPLAINT BROUGHT AGAINST YOU.

29. Additional Examples of PotentialBreaches And Ethical Violations(cont’d) • Misrepresentation of Data Sources and Research • Everything included in a Life Care Plan is subject to verification consistent with the Daubert standard; • If a data source is or potentially unreliable, should you use it?

30. Additional Examples of PotentialBreaches And Ethical Violations(cont’d) Objectivity and Disclosure • Intentional nondisclosure of data sources • Nondisclosure of data sources = unreliable opinions • Per the Daubert reliability test, another expert must be able to duplicate/verify your findings. How can your opinions be duplicated/verified if data sources are not identified or disclosed? • Fail to disclose data sources = potential exclusion by the court!

31. Additional Examples of PotentialBreaches And Ethical Violations(cont’d) Objectivity and Disclosure • Intentional nondisclosure of data sources: • U.S. District Court (federal court) judges can be rigid and unyielding in their expectation that experts will abide by the Federal Rules of Evidence • Given the potential risk to your referral source, the evaluee and your professional reputation if you intentionally don’t disclose data sources and are excluded as an expert, is it really worth it to play “hide the ball?” • Even if you can produce your data sources at time of deposition, it may be too late.

32. Additional Examples of PotentialBreaches And Ethical Violations(cont’d) Objectivity and Disclosure • Selective use of medical opinions to support the content of Life Care Plan • When multiple medical opinions are available, never rely on only one medical opinion. Fail to consider all medical opinions and risk violation of objectivity standards as stated in multiple codes of ethics. • Just because a referral source expects you to rely on certain experts, be smart; consider all the opinions available to you and, if necessary, prepare separate life care plans that consider the different medical opinions. • Appearance of bias could result in an ethical complaint, but even if this does not ultimately occur, the suggestion of bias will most certainly not enhance your credibility as an expert.

33. Avoiding Potential Breaches AndEthical Violations • Practice consistent with who you are and not who you aren’t • Your license and certifications should clearly set forth your areas of expertise • Consider all evidence • Request records you may not have, but know exist • Document your file that you have made this request • Communicate with your referral source; tell them what they “need” to hear, not what they “want” to hear • In a legal case, the most important player is:

34. THE COURT

35. Avoiding Potential Breaches And Ethical Violations • If the court believes that you • Have offered opinions inconsistent with your scope of practice and credentials • Have practiced in a manner inconsistent with codes of ethics and standards or practice applicable to you, • You may see your opinions • Limited and/or • Excluded in total

36. Avoiding Potential Breaches And Ethical Violations • Misrepresentations of any type and/or exclusions at trial will follow you for your whole life as an expert. • Rest assured that you will be asked about this in every deposition you give • Why run that risk?

37. SHORT TERM, PERCEIVED GAIN IS NEVER WORTH LONG-TERM LOSS OF CREDIBILITY.

38. Avoiding Potential Breaches And Ethical Violations • What is the Life Care Planner’s ethical obligation to the court? • Tell the truth • Do not misrepresent who you are • Demonstrate the foundation(s) for your opinion • Comply with case law that controls admissibility of expert opinion. Your retaining attorney will probably do a poor job of sharing this information with you, so ASK!

39. Avoiding Potential Breaches And Ethical Violations • Attorneys will not hesitate to take aggressive action to make your life miserable if you practice inconsistent with your training and credentials. Such actions can include: • Motion to Exclude • Motion in Limine limiting your opinion • Filing of complaints against you for breaches of a code of ethics or, worse yet: • Filing a lawsuit against you if they believe your conduct resulted in harm to their client

40. Thank you