The U.S. District Court, W.D. Virginia dealt with a federal tort claims act case – a podiatrist, Bonk, treated the plaintiff with surgery for an injured ankle which resulted in an amputation of the leg below the knee.

The U.S. hired Wirt, a registered nurse and certified life care planner to rebut the plaintiff’s physician life care plan. The plaintiff attempted to exclude the testimony of Wirt as her report was not “reviewed by a physician.”

The court rejected the exclusion of Wirt, finding that a physician review of the life care plan was not required. The court stated:

Boden seeks to exclude Wirt’s testimony because he argues, as a registered nurse, she cannot opine on the medical necessity of his support care without the review of a physician. Boden further argues that the testimony should be excluded under Fed. R. Evid. 403. The government argues that Wirt’s opinion is admissible because she is a registered nurse under Virginia law, her report does not speak to medical necessity, and her experience lays a foundation for a reliable report, with or without a physician’s review. The court finds, for the reasons that follow, that Wirt’s testimony is reliable and does not require a physician’s review to be admissible. Any question as to the weight of Wirt’s life-care plan critique is properly reserved for cross-examination.

First, the court finds that any concern of prejudice from the admission of Wirt’s testimony under Fed. R. Evid. 403 is mitigated because this is a bench trial. See Schultz v. Butcher, 24 F.3d 626, 632 (4th Cir. 1994) (“Rule 403 assumes a trial judge is able to discern and weigh the improper inferences, and then balance those improprieties against probative value and necessity. Certainly, in a bench trial, the same judge can also exclude those improper inferences from his mind in reaching a decision”). The Fourth Circuit has held that “in the context of a bench trial, evidence should not be excluded under [Rule] 403 on the ground that it is unfairly prejudicial.” Id.

Further, courts in this circuit have found that life-care plans can be admissible without a physician review, so long as they are reliable. See e.g., Burress v. Winters, No. 08-cv-2622, 2010 WL 2090090, at *1 (D. Md. May 21, 2010) (allowing a life-care plan without a physician review and finding that “numerous courts have permitted non-physicians to opine about future medical needs, even when their opinions are not supported by the recommendations of a physician”); Payne v. Wyeth, No. 08-cv-119, 2008 WL 5586824, at *3-4 (E.D. Va. Nov. 17, 2008) (permitting life-care plan where the expert’s opinion was based upon sufficient facts and data, and is a product of reliable principles and methods which the expert had previously used, despite not having a physician review the report).

The First Circuit, the only circuit to write on this issue, affirmed a district court’s decision to admit a life-care planner’s testimony regarding future medical needs that did not include a physician review. Rivera v. Turbo Med. Ctr., 415 F.3d 162, 170-71 (1st Cir. 2005). “The district court considered [the expert’s] professional credentials and ascertained that he had been admitted as an expert on rehabilitation and life-care planning in numerous state and federal courts….” Id. at 171. The court also took into consideration the records reviewed and other steps taken by the expert in preparing the life-care plan. Id. Taken together, the court concluded the expert’s methodology was sufficiently reliable and the testimony to be admissible, “[a]lthough [the] report might have benefitted from a physician’s review….” Id.

Other courts also have found a life-care planner’s testimony to be admissible based on the methodology the life-care planner used. Courts typically look to what evidence the life-care planner relied on when developing the life-care plan, including reviewing a patient’s medical records, reviewing depositions of the patient or the patient’s treating physician, meeting with the patient or treating physician, or physically examining the patient. See e.g., Deramus v. Saia Motor Freight Line, LLC, No. 08-cv-23, 2009 WL 1664084, at *2 (M.D. Ala. June 15, 2009) (admitting a registered nurse’s life-care plan without a physician’s review where she reviewed medical records, depositions taken of the plaintiff’s physicians, and met with the plaintiff); Botelho v. Nordic Fisheries, Inc., No. 15-cv-11916, 2018 WL 2291315, at *6 (D. Mass. May 18, 2018) (admitting the testimony of a non-certified life-care planner where he followed a similar methodology, including reviewing medical records, looking at medical history, evaluating the patient, and talking to treating physicians)

Wirt can testify as to her opinion on the amount of care he needs based on her experience as a registered nurse and life-care planner.

Wirt reviewed over ten years of records and documents in drafting her life-care plan, including:

  • The complaint;
  • Medical records from Parham Doctor’s Hospital (Julie Greenwood, DPM-08/06/2015 operative report, anesthesia records);
  • Veterans Administration Medical Center (VAMC)-Gainesville, FL;
  • Cross City Nursing and Rehabilitation Center;
  • VAMC-Salem, VA;
  • VAMC-Richmond, VA;
  • The Podiatry Center;
  • Central Piedmont Health Services, Inc.;
  • Halifax Regional Hospital Emergency Department;
  • 01/28/2015, 06/22/2016 Virginia Department of Veterans Services Rating Decision;
  • Mid-Florida Prosthetics and Orthotics;
  • Allergy, Asthma, & Immunology Consultants, Inc.;
  • Richard Denner, DPD, FACFAS report of 01/30/2019;
  • Bernard Pettingill, Jr., Ph.D. report of 02/21/2018;
  • Deposition of Robert Boden 02/11/2019;
  • Deposition of Carol Boden 02/12/2019;
  • Deposition of Craig Lichtblau, MD, PA 06/03/2019; and
  • Report of Craig Lichtblau, MD, PA 11/16/2017.

ECF No. 38-1, at 4. She further based here opinion on over two decades of clinical experience as a registered nurse, a certified case manager, and a life-care planner, as well as her review of the pertinent scientific and medical literature reasonably relied upon by members of the life-care planning profession. Id. While a physician’s review might have benefited Wirt’s report, the court concludes that Wirt’s methodology was sufficiently reliable as to be admissible. As such, any objections to Wirt’s opinions must go to the weight of the evidence rather than its admissibility.

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