The 1998 book Damages by Barry Werth chronicles a malpractice lawsuit in the US related to the 1984 birth of a boy with a severe brain injury.1 The book describes the devastating effects on all parties to the lawsuit of the boy’s complicated birth and early life and the overarching and at times oppressive demands of the litigation process.
That process eventually led to an “eleventh hour” settlement with the last of the Defendants in the case in December 1993. The total paid by all Defendants to the family was something a bit shy of $8 million US (not inflation-adjusted). The amount hinged in large part on the expected present value of costs of medical care, therapies, anticipated surgical procedures, and equipment, which it was presumed would continue to be incurred throughout the child’s remaining lifetime. The remaining lifetime was assumed for the purposes of calculations and negotiations to be the life expectancy, or the average survival time, for comparably disabled children. Thus, life expectancy was a critical issue in settlement negotiations. As Werth put it, “Lawyers for both sides knew that time equaled money: the longer a victim lived, the greater the damages, and thus the larger both the value of the case and the lawyers’ fees.”
Dr Herbert Grossman, a pediatric neurologist, served as an expert witness for the Defense in the case, relying primarily on his 1990 publication, Eyman et al.,2 to opine that the nine-year-old child had a life expectancy of less than 5 remaining years. On the opposing side, Plaintiffs’ expert Dr Lawrence Kaplan, a clinician whose area of specialization is not identified in the book, opined that the child had a “normal life expectancy.” This would have meant something in the neighborhood of 65 remaining years. Dr Kaplan based this on his “medical examination,” and, “not statistics.” The difference in corresponding expected present values of lifetime costs of care would be millions of dollars.
The child’s abilities and disabilities fit the criteria for the most severely disabled group described in Eyman et al.2 The group “had profound, severe, or suspected mental retardation, were immobile, were not toilet trained, and required tube feeding (Subgroup 1).” The study reported a life expectancy of 4.8 remaining years for 10-year-olds in this group.
Werth noted that Plaintiffs’ attorney Bernard, “believed he could weaken [Dr Grossman] so much at his deposition that [opposing counsel] Doyle would dump him before trial….” Werth himself found Grossman’s research, “...peculiar. Based exclusively on statistics, it relied on the same predictions regardless of age and precise medical status.” None of this accurately describes the study by Eyman et al.,2 with the possible exception of “peculiar.” There was in fact something fundamentally wrong with the life expectancy estimates reported in the study, but no one involved in the law suit chronicled by Werth knew at the time what it was.
Had he been aware of the real problem with the study (read about the error in the study by Eyman et al.2 here and here), Bernard almost certainly would have achieved his goal of severely weakening Grossman at deposition. Instead, Grossman’s testimony and study carried considerable weight during multiple attempts at mediation and settlement. According to Werth, Plaintiffs were concerned the child “could die any minute.” If the child died, money for future costs of care would be off the table. This fear (together with other considerations) led to a last-minute decision by Plaintiffs to reduce dramatically their demands in an effort to reach a settlement with the last remaining defendants in the case. Had they truly believed their expert’s normal life expectancy assessment, they should have had no more fear of the child’s imminent death than they would any typical 9-year-old’s; in other words, almost no fear at all for decades. The child in the case actually lived just over 20 years from the date of Dr Grossman’s deposition, dying in December 2013; an outcome that would have been quite consistent with Eyman et al.‘s results had they analyzed their data more appropriately.
The life expectancy of children with CP is important for many audiences and reasons. Parents would like to know how long they might have to fulfil what are often challenging physical, emotional, and monetary requirements of caring for a child with special needs; they want to know how long they might get to enjoy the rewards of that relationship, and they wonder and worry whether their child might outlive them. Resource allocation for long-term care facilities for such children will depend in part on the longevity of their residents, and life expectancy may also be seen as a measure of effectiveness of care provided. Life insurance and structured settlement underwriters must consider length of life in pricing insurance or annuities. Life expectancy can be a critical factor in developing and valuing a life-care plan, the expected present value of which may be a large part of any settlement of a personal injury lawsuit.
In the litigation chronicled by Werth, experts on both sides brought widely differing, and unrealistic, views on life expectancy to the table. One was unrealistic due to an error of arithmetic in an otherwise reasonable approach to the question, using data that have proven in numerous subsequent studies to be a valuable source of information on the topic; the other was unrealistic due to an apparent lack of any real understanding of the concept of life expectancy, and no scientific examination of any pertinent data. Today, there are many studies that have been carried out correctly, and that provide reasonable estimates of survival that can shed light on the question of life expectancy in cerebral palsy. Some of these studies are based on the same source of data utilized by Eyman et al. in their flawed 1990 study,2 while others draw on data from registries and other sources around the world. Many of these studies are documented in a recent review by Day et al.3 but keep in mind that more scientific evidence on this topic is published nearly every year. Anyone who would weigh in as an expert on the issue of life expectancy in cerebral palsy must, at a minimum, be familiar with this evidence.
1. Werth B. Damages. Simon & Schuster, New York; 1988.
2. Eyman RK, Grossman HJ, Chaney RH, Call TL. The life expectancy of profoundly handicapped people with mental retardation. N Engl J Med. 1990 Aug 30;323(9):584-9.
3. Day SM, Reynolds RJ, Kush SJ. Extrapolating published survival curves to obtain evidence-based estimates of life expectancy in cerebral palsy. Dev Med Child Neurol. 2015 Dec;57(12):1105-18.