"Ethics in Life Care Planning * Litigated Cases and Ethical Issues*

Report
“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
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.
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
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:
o Greater potential risk of breaches in ethical codes of conduct
and an approach to life care plan development;
o Increased risk of being seen as practicing outside one's scope of
practice; and
o Increased risk of exclusion by the Court as a potential
consequence of such behavior.
Increased Use Of Life Care
Planners
(cont’d)
•
Increased numbers of people doing Life Care Plans create more
competition; this may result in:
o Potential questionable tactics to gain a perceived marketing advantage
o Less consideration for the code(s) of ethics that apply to them
o Perceived need to go extraordinary lengths to set oneself apart from other life
care planners
o Potential use of questionable methodologies in an attempt to enhance credibility
o All of these factors can create an increased risk of potential breaches and
violations
Increased Use Of Life Care
Planners
(cont’d)
•
Potential Consequences
o Breaches in accepted protocols for Life Care Plan development
o 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
Definition of Ethics
• Can there be a definition of “Legal Ethics?”
• Some say that “legal ethics” is an oxymoron!
Definition of Ethics
(cont’d)
• Legal Definition – Black’s Law
Dictionary
o 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
o The rules or standards governing the conduct of a person or the
conduct of the members of a profession
Definition of Ethics
(cont’d)
•
Definition of Ethics (Merriam Webster)
o a set of moral principles; a theory or system of moral values; a
guiding philosophy; consciousness of moral importance
•
Definition of Ethical (Merriam Webster)
o involving or expressing moral approval or disapproval; conforming to
accepted standards of conduct
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:
o 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.
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.
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.orgapplies 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
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:
o
o
o
o
o
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.
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)
Recent Court Ruling on
Daubert Challenge
•
Delisa Hale, Plaintiff, vs. Scott T. Gannon, et al., Defendants.
o Cause No. 1:11-cv-277-WTL-DKL
o United States District Court for the Southern District of Indiana,
Indianapolis Division
o 2012 U.S. Dist. LEXIS 125756
o Filed/Decided September 5, 2012
Recent Court Ruling on
Daubert Challenge, cont’d
•
Defendants objected to Plaintiff’s Life Care Planner’s:
o Qualifications;
o Methodology;
• Future Needs Analysis;
o Cognitive Rehabilitation;
o Medications;
o Orthopedic Follow-Up;
o Trigger point injections;
Recent Court Ruling on
Daubert Challenge, cont’d
•
Defendants objected to Plaintiff’s Life Care Planner’s:
o Relevance (based on plaintiff physician questionnaires);
o “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.”
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
•
o The importance of reliability of expert witness testimony; and
o 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!
Examples Of Potential Ethical
Violations
•
Misrepresentation of:
o
o
o
o
o
Credentials
Areas of expertise
Ability to provide appropriate foundation for Life care Plan content
Data sources and research
Role in the case
Examples Of Potential Ethical
Violations
(cont’d)
•
Objectivity and Disclosure:
o Nondisclosure of data sources
o Selective disclosure of data
o Selective use of medical opinions in support of Life Care Plan
Case Examples Demonstrating
Potential
Breaches And Ethical Violations
Misrepresentation of Credentials- Actual Case Example:
• Action:
o (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)
Case Examples of Potential
Breaches And Ethical Violations
(cont’d)
Misrepresentation of Credentials- Actual Case Example:
• Outcome: Credibility questioned at deposition
o 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.
Case Examples of Potential
Breaches And Ethical Violations
(cont’d)
Misrepresentation of Credentials- Actual Case Example:
• Outcome: Credibility questioned at deposition
o 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.
Case Examples of Potential
Breaches And Ethical Violations
(cont’d)
Misrepresentation of Role in Case:
•
Action:
o 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
o Represented that they were “involved in the case”
o Solicited opinions regarding future care needs without authorization
Case Examples of Potential
Breaches And Ethical Violations
(cont’d)
Misrepresentation of role in case
• Outcome:
o 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 . . .”
o At trial, $7,500,000 awarded by jury for Life Care Plan
o Total jury verdict: $16,907,382.
Case Examples of Potential
Breaches 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.
Additional Examples of Potential
Breaches And Ethical Violations
(cont’d)
•
Ability to provide appropriate foundation for life care plan content
o Is your license or certification enough for YOU to recommend the
content of an item in a Life Care Plan? ARE YOU SURE?
o Does your scope of practice allow you to make the
recommendation?
o If a recommendation is for a medical procedure, do you have a
license to practice medicine?
o 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:
BEING EXCLUDED BY THE COURT
AND/OR HAVING AN ETHICAL
COMPLAINT BROUGHT AGAINST YOU.
Additional Examples of Potential
Breaches And Ethical Violations
(cont’d)
•
Misrepresentation of Data Sources and Research
o Everything included in a Life Care Plan is subject to verification consistent with
the Daubert standard;
o If a data source is or potentially unreliable, should you use it?
Additional Examples of Potential
Breaches And Ethical Violations
(cont’d)
Objectivity and Disclosure
•
Intentional nondisclosure of data sources
o Nondisclosure of data sources = unreliable opinions
o 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?
o Fail to disclose data sources = potential exclusion by the court!
Additional Examples of Potential
Breaches And Ethical Violations
(cont’d)
Objectivity and Disclosure
• Intentional nondisclosure of data sources:
o 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
o 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?”
o Even if you can produce your data sources at time of deposition, it may be too
late.
Additional Examples of Potential
Breaches And Ethical Violations
(cont’d)
Objectivity and Disclosure
• Selective use of medical opinions to support the content of Life Care Plan
o 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.
o 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.
o 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.
Avoiding Potential Breaches And
Ethical 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:
THE COURT
Avoiding Potential Breaches And
Ethical Violations
•
If the court believes that you
o Have offered opinions inconsistent with your scope of practice and
credentials
o Have practiced in a manner inconsistent with codes of ethics and
standards or practice applicable to you,
•
You may see your opinions
o Limited and/or
o Excluded in total
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?
SHORT TERM, PERCEIVED
GAIN IS NEVER WORTH
LONG-TERM LOSS OF
CREDIBILITY.
Avoiding Potential Breaches And
Ethical Violations
• What is the Life Care Planner’s ethical
obligation to the court?
o Tell the truth
o Do not misrepresent who you are
o Demonstrate the foundation(s) for your
opinion
o 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!
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:
o Motion to Exclude
o Motion in Limine limiting your opinion
o Filing of complaints against you for
breaches of a code of ethics or, worse yet:
o Filing a lawsuit against you if they believe
your conduct resulted in harm to their client
Thank you

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