Preparation of Care Cost Evidence for Trial

Health care professionals and future care planners have become increasingly expert at preparing assessments of future care costs in cases involving brain injury with residual functional impairment. These reports are often used by the victim’s lawyer in the prosecution of claims against the accident benefit carrier and against the tort insurer. In a very small number of cases, it will be necessary for those who participated in the creation of the report to give evidence at trial. Proper preparation for that task is essential to the effective presentation of the often complex life care plan that has been developed to respond to the victim’s impairment.

In a recent case tried before Madam Justice Spies and jury in Toronto (Resch v. Canadian Tire), I had occasion to call evidence from the life care planner and other expert witnesses who were involved in the plaintiff’s care. The defendant also called expert evidence on future care costs and the jury had the opportunity to compare the future scenarios presented by each side in the case. A number of steps taken in preparation for trial helped the jury to deliver a verdict that clearly preferred the plaintiff’s experts’ evidence to that of the defendants.

First in the process is to do a careful review of the case at least 120 days prior to the scheduled start of the trial. This is important because any fresh reports or changes to old reports must be served on the defendant’s lawyer at least 90 days prior to the trial. This review should ideally take the form of a case conference involving the victim’s lawyer, care cost planner and any health care professionals providing significant treatment. Any reports on care cost issues prepared for the plaintiff should be carefully reviewed. In addition, reports prepared at the request of the defendant should be available and should also be carefully reviewed for comment and response if that is deemed to be appropriate.

One of the purposes of the review is to update the data and assumptions used in preparing the report. In order to effectively do that, it is necessary to carefully interview the victim’s family and caregivers as well as the victim him/herself. This should be done by the care cost planner in advance of the review meeting. If a plan of care is in place and operating, then updates on how well it is working and what it is actually costing will prove invaluable as a foundation for projections into the future. Any changes or improvements in the victim’s level of functioning can be taken into account at this time and programs and outcomes revised if necessary.

It is not usually possible to have every treating health care professional in attendance at such a meeting, so it may be necessary, as a follow-up measure, to interview physicians and others who may have had a role in caring for the victim. This should be done as an immediate follow up to the review meeting. Careful notes of any conversations with treating practitioners should be kept since these interviews will form a foundation for the oral evidence that is given at trial.

In the preparation of final reports for delivery prior to trial, careful attention should be given to charts and grafts displaying the quantitative aspects of the future care cost plan. Wherever wage rates or fees for rehabilitation services are set out, they should be updated and verified to make sure that they represent accurate costs. It is very helpful if the charge that present this data are logical, well organized and concise so that they can be used as an outline for the oral evidence that is given at trial.

In my experience, it is very time consuming to organize and distil data into a compact and effective graphical presentation. The advantage of spending the time is that trial counsel will have a much easier time leading the witness’ evidence through the life care plan and, at the conclusion of oral evidence, will be able to file the charts and grafts produced by the witness as an exhibit for the assistance of the jury.

The reason for ensuring that the data contained in the charts is accurate and up to date is so that last minute changes in oral evidence do not render obsolete the charts and graphs that you intend to use at trial.

In the Resch case, which I mentioned above, we were able to provide the jury with a two-page summary chart of all the evidence given on behalf of the plaintiff on the issue of future care costs and compare it with the evidence that was given by the defendant’s expert on a line-by-line basis. The two-page chart that was created using the experts’ evidence was then given to the jury to use in coming to their decision on the appropriate amount to be awarded for care costs. In the Resch case, the jury awarded the plaintiff $1.5 million under this head of damage. This very significant award emphasizes the importance of taking great care in presenting this evidence at trial.

All of the pre-trial preparation which I have discussed above will culminate in a lengthy briefing of the care costs expert and of any health care professional whose opinion is used as part of a foundation for the health care expert’s report. The pre-trial briefing will often require more than one day. Time should be set aside well in advance of the trial for this critical step in preparation for testimony at trial.

Properly assessed, the care costs associated with a brain injury case are often the largest single component of the damages awarded to the plaintiff. The four month trial preparation process that I have described above will assist all trial participants in presenting the most effective and persuasive case for adequate care of the victims of a traumatic brain injury.