White Paper · Catastrophic Injury · Illinois

Life-Care Planning Evidence in Illinois Courts

The largest number in a catastrophic case is the care not yet given. Proving it takes medical need, reasonable cost, and present value, each with its own foundation.

By Lincoln Square Law · 10-minute read

In a catastrophic injury case, the largest part of the damages is often care that has not yet been provided: attendant care for decades, replacement wheelchairs every few years, surgeries the treating physicians expect but have not scheduled, therapy, medication, and home and vehicle modifications. A jury cannot award those costs on sympathy or estimate. Illinois law requires proof that the care is reasonably certain to be needed and evidence of what it will reasonably cost. The document that usually carries that proof is a life-care plan. This paper explains what a life-care plan is, the evidentiary rules it must satisfy in Illinois courts, how defendants attack it, and how to build one that holds up.

The legal standard for future medical expenses

Illinois allows recovery of the present cash value of the reasonable expenses of medical care, treatment, and services reasonably certain to be received in the future. That is the language of the pattern jury instruction on medical expenses, Illinois Pattern Jury Instructions (Civil) 30.06, and the notes on use state that the future-expense element should be given only where there is evidence that such expenses are reasonably certain to be incurred. Present cash value is addressed in the 34.00 series of the pattern instructions.

Three requirements follow from that standard, and a life-care plan is useful only to the extent it satisfies each one. The care must be reasonably certain to be needed, which is a medical question. The cost must be reasonable, which is an economic and market question. And the total must be reduced to present cash value, which is usually the work of an economist. A plan that is persuasive on need but thin on cost, or careful on cost but unsupported on need, leaves a gap the defense will use.

What a life-care plan is

A life-care plan is a structured projection of the medical and related care an injured person will need over the rest of his or her life, with the frequency, duration, and cost of each item. It is usually prepared by a nurse, rehabilitation professional, or physician with training in life-care planning, working from the medical records, interviews with the injured person and family, a home visit, and consultation with treating physicians.

A typical plan is organized by category: physician follow-up, therapies, diagnostic testing, medications, medical equipment and its replacement schedule, supplies, attendant or nursing care, residential care, home modifications, transportation, and anticipated future surgeries or complications. For each item it states what is needed, how often, for how long, the unit cost, and the source for the cost.

The plan does not prove itself. Illinois courts treat it as a vehicle for expert opinion, and its weight depends on the medical foundation for each recommendation and the reliability of the pricing.

The medical foundation

The most common weakness in a life-care plan is an item that no physician has endorsed. A life-care planner may be qualified to organize care and research costs, but whether a patient will need a spinal cord stimulator, a second fusion, or 24-hour attendant care is usually a medical opinion. When the plan’s recommendations rest on the planner’s own judgment rather than a physician’s opinion to a reasonable degree of medical certainty, the defense will argue that the future care is speculative and not reasonably certain.

The strongest plans tie each significant item to a specific physician’s opinion, either a treating physician or a retained expert in the relevant specialty. The physician reviews the plan, confirms the recommendations within his or her expertise, and is prepared to testify to them. Items that no physician will support should be removed. A leaner plan with a clear foundation for every line is worth more at trial than a longer plan with items the jury is invited to doubt.

The evidentiary gate: Rule 702 and Frye

Illinois did not adopt the federal Daubert standard. Illinois Rule of Evidence 702 provides that when an expert testifies to an opinion based on a new or novel scientific methodology or principle, the proponent must show that the methodology or principle is sufficiently established to have gained general acceptance in the particular field. That is the Frye test, which the Illinois Supreme Court applied in In re Commitment of Simons, 213 Ill. 2d 523 (2004), and in Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63 (2002).

In practice, life-care planning is not usually treated as a new or novel methodology, and most challenges are not Frye challenges. They are challenges to foundation and qualifications: whether this expert is qualified to give this opinion, whether the facts and data are of a type reasonably relied on by experts in the field (Ill. R. Evid. 703), and whether the opinion is supported by the record or amounts to speculation. Where a party does raise Frye, the question is limited to whether the methodology is generally accepted, not whether the conclusions are correct. Disagreements about the conclusions go to weight and are for the jury.

Disclosure matters as much as admissibility. Illinois Supreme Court Rule 213(f)(3) requires disclosure of a controlled expert witness’s conclusions and opinions and the bases for them. A life-care planner or physician whose trial testimony goes beyond the disclosed opinions invites an objection that can remove the new testimony, so the plan and the physicians’ support for it should be disclosed completely and updated when care changes.

The cost foundation

Every price in the plan should have a source that the jury can understand and the defense can check: provider charge data, local vendor quotes, published drug prices, agency rates for home care in the relevant area, and similar sources. Pricing should reflect the injured person’s location. A home-care rate from a different metropolitan area invites an easy attack.

Illinois law allows the plaintiff to present the reasonable value of medical services, and the collateral source rule keeps evidence of insurance and other payments from the jury. In Wills v. Foster, 229 Ill. 2d 393 (2008), the Illinois Supreme Court held that a plaintiff may seek the full reasonable value of medical services, as shown by billed amounts with a proper foundation, even though a lesser amount was accepted as payment in full by the provider. Wills concerned past medical bills, and future care presents different proof problems, but the principle that the measure is reasonable value, not what an insurer happened to pay, informs how future costs are presented. Defendants will often counter with evidence of lower market rates, and the plan should be prepared to explain its figures.

Present value and life expectancy

A life-care plan projects costs in future dollars over a lifetime. The jury’s award must be the present cash value of those costs. An economist typically applies growth rates for medical costs and a discount rate to arrive at a present value, and the assumptions behind both should be disclosed and explained.

Life expectancy often drives the largest swing in the total. General mortality tables may overstate the life expectancy of a person with a severe spinal cord injury or brain injury, and defendants frequently retain experts to argue for a shorter life expectancy. The plaintiff’s evidence should address life expectancy directly, with a physician’s opinion that accounts for the specific injury, the quality of care, and the injured person’s health.

The defense playbook, and the answer to it

Defendants typically attack a life-care plan in predictable ways. They argue that recommended care is speculative because no physician ordered it. They argue that the plan assumes the most expensive setting, such as a skilled facility or 24-hour nursing, when family or lower-level care would suffice. They present a competing plan with less care and lower prices. They challenge life expectancy. And they point to items that duplicate one another or that the injured person has not used in the years since the injury.

The answer to each attack is preparation. Tie every recommendation to a physician. Explain why the level of care is appropriate for this person, with evidence from the home visit and family testimony. Use local, documented pricing. Address life expectancy with specific medical evidence. And audit the plan for duplication and for recommendations that the injured person’s actual history does not support. A plan that has been tested this way before trial is far more persuasive than one defended only after cross-examination exposes its gaps.

Liens and Medicare

Future care awarded by a jury or funded by a settlement can raise reimbursement and coordination questions. Medicare is a secondary payer when a liability settlement, judgment, or award covers medical expenses (42 U.S.C. §1395y(b)(2)), and where the injured person is a Medicare beneficiary or expects to become one, the parties should consider how future medical expenses covered by the recovery will be handled. The life-care plan is often the starting point for that analysis.

Building the plan: a sequence

• Start early. Engage the life-care planner once the injured person’s condition has stabilized enough to project care, not on the eve of expert disclosure.
• Gather complete records. The plan is only as good as the medical history behind it.
• Visit the home. A home visit shows the planner, and later the jury, how the injured person actually lives.
• Secure physician support. Have treating or retained physicians review and confirm each medical recommendation.
• Price locally and document sources. Every number should have a source the jury can follow.
• Coordinate with the economist. Agree on assumptions for growth and discount rates and on the life expectancy used.
• Disclose completely and update. Keep Rule 213 disclosures consistent with the current plan.

Reasonable certainty, documented cost, and present cash value

A life-care plan turns the unseen future of a catastrophic injury into evidence a jury can evaluate. In Illinois, it succeeds when each item of care is shown to be reasonably certain to be needed through physician testimony, each cost is reasonable and documented, and the total is reduced to present cash value on assumptions the jury can understand. Built that way, it is often the most important exhibit in the damages case.