Kelly on Malpractice

Suppose you represent a paralyzed client. You retain a life care planner to calculate the cost of caring for this client for a lifetime. The total cost is usually in the millions. Be wary of a defendant health care provider who moves in limine to exclude your life care planner because there is no expert will testify that the items in the life care plan were caused by the defendant’s negligence. This can be a seductive argument at first blush, but it is a legal fiction. A prima facie case for medical malpractice requires an expert to prove the element of medical causation and damages. The legal requirements for medical causation and damages are different. Medical causation requires expert testimony to prove an injury “which would not otherwise have occurred.” TENN. CODE ANN. § 29-26-115(a). This is all the medical malpractice statute requires. You simply need expert testimony to prove medical causation, i.e., that the defendant’s deviation from the standard of care “caused” the plaintiff’s paralysis and sequelae. It means the plaintiff’s paralysis and sequelae are “injuries which would not otherwise have occurred.” If your expert testified that plaintiff would have been neurologically normal, i.e., made a full recovery but for the negligence, then it establishes the legal requirement for medical causation.

Damages require expert testimony that the plaintiff’s future health care services are “reasonable and necessary.” You need an expert, or preferably a treating physician, to prove that all of the health care services and supplies in the life care plan are reasonable and necessary. In other words, the life care plan must be “blessed” by a physician. Once the physician “blesses” the plan, it means that the services and supplied listed in the life care plan are reasonable in value and medically necessary for treatment. This satisfies the plaintiff’s prima facie burden of proving damages. This constitutes the legal requirement for damages.

Sometimes, a defendant will confuse the legal requirements for proving the elements of causation and damages. I call this “cross-pollination” because the defendant attempts to double the burden by revisiting the legal requirements of causation and forcing it on damages. In so doing, the defendant may contend that the plaintiff has not proven that the items listed in the life care plan were caused by defendant’s negligence. Defendant may argue as a corollary that plaintiff must prove that all items in the life care plan are attributable to the negligence of the defendant. The law does not require such a specific burden before admitting a life care plan. Moreover, the plaintiff does not have to prove causation twice. Once the plaintiff proves medical causation [injuries which would not otherwise have occurred], and proves damages [reasonable and necessary], the burden then shifts to the defendant to rebut the prima facie claim if it so chooses. This is the threshold legal requirement for admitting a life care plan, nothing more and nothing less.

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