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Prosthetic Projections
Activity Levels
Phases of Life
Description of K Levels
Three Types of Devices
Establishing Cost Data
Completing the Report
Experience
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By Rick Riley, CP
February 1, 2003
It is Tuesday afternoon, hot and sultry as most August afternoons in Georgia. It is 1974, and I am returning from my day job as the recreation director of a children's home, hoping to catch a catnap before I start my night job. The staccato whine of the tiny engine on my Honda 100 stabs through the afternoon heat as I turn onto the road behind my parent's house.
Ahead is the construction zone I have gone through earlier in the day. I come to a stop as the lazy flagman glances in my direction.
"Is it OK for me to go?" I yell through my helmet.
His only response is a nod and quick wave of the flag indicating that I can pass. As I accelerate, I see that a front-end loader is in my lane ahead of me, apparently going toward the line of vehicles parked up ahead.
The Honda is hardly an acceleration machine, however, I quickly overtake the front-end loader going eight miles per hour. As I pull up behind I see that the flagman at the far end of the construction zone is holding traffic, so I ease out to pass. Just as I come up beside the loader, I catch a movement of the driver's left arm and instinctively throttle down. I am too late. The huge extended blade of the loader whips in front of me as the driver makes a sudden unsignaled left turn. I swerve on my bike to avoid the blade, but the front corner catches my front tire and catapults me from the bike. As I am flying through the air, time slows to a crawl. Being a wrestler and a football player, I know how to land. After flying 30 feet, I ball myself up and roll six or eight times. As I am rolling across the red Georgia clay, I'm trying to discern if I am injured but I feel no pain. When my tumble ends, I pop to my feet to find that I am having difficulty balancing on my right foot. I look down and lift my foot. It separates from my shin with only a shred of Achilles tendon holding it to my body.
Prosthetic Projections
Thus at the age of 20, I became a transtibial amputee - about the last thing I expected to happen to me on a Tuesday afternoon. As I began my prosthetic rehabilitation, I also became embroiled in a lawsuit against the construction firm. My lawyer requested from my prosthetist a cost projection for my prosthetic needs. My prosthetist told me how inadequate he felt about developing a reasonable projection of my future needs. The $50,000 I eventually settled for nearly four years later, of which my attorney got half, would not have kept me in prostheses for five years, let alone the 55 years of my projected life expectancy.
Part of the reason I ended up in prosthetics was self-defense. I could not afford to keep myself in limbs on a teacher's salary. I was going through almost two legs a year for the first five years, as my residual limb continued to rapidly atrophy under the high activity level I maintained.
In 1986, I decided to systematically approach the problem of projecting the prosthetic needs of the amputee for a client in Massachusetts. During the 16 years I have provided expert witness testimony, I have refined my system to attempt to develop a consistent projection - whether representing the plaintiff or the defense.
I begin with one basic premise. My job is to project what it would cost to return an amputee to his or her pre-amputation style of life given the limitations of prosthetic technology. As a prosthetist, I feel that I'm good at my work (as most of us are), but nothing beats healthy original equipment. However, with proper prosthetic equipment, an amputee today can return to a fairly normal lifestyle that includes a recreational component.
Activity Levels
The activity level of an amputee has a tremendous impact on the type of componentry suitable for the individual. In my experience, the more active an amputee, the more prosthetic replacements he or she will require. This is due to wear and tear on components as well as atrophy of the residual limb under the pressure of extra-ambulatory activity. The first step is to determine the activity level of the amputee. A new amputee may not have much of an activity level, but this is not necessarily indicative of their future lifestyle. The best measure of activity level is the amputee's past activities. If the individual was an athlete or was recreationally active, one can project they will seek to return to that lifestyle. If the individual was sedentary and overweight, it is unlikely he or she will become a competitive athlete.
I use Medicare guidelines in classifying the lifestyle of the amputee. Medicare breaks lifestyle into four categories or K levels. I generally obtain the K level of the amputee from the prosthetic records or by personal interview. What I have discovered throughout the years is that recorded testimony, i.e., medical records or depositions, is a much stronger platform than personal opinion and interviews. Depositions and medical records can be tedious to read and digest, so I usually reserve 10 to 12 hours to read and annotate these records. From these you can obtain a basis for your claim of lifestyle. I highlight and bookmark references to recreational involvement or any medical condition that may affect lifestyle or residual limb condition. Depositions may have a glossary that can assist you in flagging relevant data contained therein.
The activity level influences the number of replacement prostheses an amputee will generally require. The more active the amputee, the greater the number of replacement prostheses. My experience is that prostheses need to be replaced periodically for anyone, depending on wear and tear, but an active amputee will need replacements more often.
Phases of Life
In addition to activity level, I break the amputee life expectancy into three phases. The first phase, which I call the initial phase, is the time of most rapid change, requiring the most frequent replacements due to shrinking and maturing of the residual limb and experimenting with components to find the right combination of prosthetic hardware. In children, I extend this phase to the age at which they stop growing.
Description of K Levels
Upon returning home from visiting a far-off, exotic location, most travelers have gorgeous tales to spin about their adventures in tropical paradise. However, Dale Berry, CP, upon returning from Afghanistan as part of the Project First Step team, deviates from the norm by describing a country scarred from years of wars, ethnic conflict, repressive regimes, drought, famine and earthquakes.
K Level 1: Patient has the ability or potential to use a prosthesis for transfers or ambulation on level surfaces at a fixed cadence; typical of the limited and unlimited household ambulator.
K Level 2: Patient has the ability or potential for ambulation with the ability to transverse low-level environmental barriers such as curbs, stairs or uneven surfaces; typical of the limited community ambulator.
K Level 3: Patient has the ability or potential for ambulation with variable cadence; typical of the community ambulator who has the ability to transverse most environmental barriers and may have vocational, therapeutic or exercise activity that demands prosthetic utilization beyond simple locomotion.
K Level 4: Patient has the ability or potential for prosthetic ambulation that exceeds basic ambulation skills, exhibiting high impact, stress or energy levels; typical of the prosthetic demands of the child, active adult or athlete.
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Should replacement projections include the entire prosthesis or components only? In reality, these do not always correspond with one another, i.e. the foot needs to be replaced but the socket still fits, or vice versa. This is nearly impossible to predict, and in my experience, these factors tend to even out over time. Therefore, I project replacement of the entire prosthesis. Only on backup prostheses do I project socket replacements only, since it is common to use components from old prostheses for the backup limb.
The second phase of the life expectancy I call the stable phase. The phase is characterized by stable residual limb and activity level. It may or may not include a recreational component and depends upon activity level. The time frame for this phase is the middle years of a person's life.
The third phase is the geriatric phase representing the time of life when lifestyle becomes more sedentary. The replacement projection will take this change of lifestyle into account.
I vary the time in each phase based on lifestyle considerations and medical conditions that are part of the court record. This becomes a subjective analysis, but I will back it up with references to lifestyle and medical history.
I obtain life expectancy data from a chart published by the National Vital Statistics System. You can use actuarial tables from insurers or charts provided by economists. However, I prefer to use information from the federal government and then have an economist or life care planner corroborate or correct my data. That way, I feel I am covered on a subject about which I am not an expert.
Three Types of Devices
In addition to projecting three phases of life expectancy, I project three types of prosthetic devices for each K-2 or higher amputee:
Primary or walking prosthesis is the everyday limb for the majority of activities of daily living, with the exception of water activities.
Backup prosthesis is used when the primary limb cannot function and requires repairs.
The shower/swim prosthesis is designed to be used in water.
Ancillary prostheses are not a new item, however, they have not been commonplace in our world due to the high cost of basic prostheses. Again, my job is to project the cost of prosthetic devices that will most closely return the amputee to a normal lifestyle. This generally requires some type of specialized prosthesis that is designed for water sports, skiing, hunting, golfing, backpacking, mountain climbing or any other activity in which the amputee participates as an integral part of their lifestyle.
Justification for these ancillary prostheses is always tricky. I am often grilled by opposing lawyers as to why these limbs are necessary. My reply is simple: "Do most people have different pairs of shoes for wearing to church and hiking in the mountains?" The answer is obvious, so I ask why amputees must be relegated to a single prosthesis to accomplish all the aspects of their daily life. Many prosthetic components are not designed to be submerged in water. So does that mean the wearer can never get in a boat or enjoy the beach with his children or grandchildren?
In my private practice, we were able to get reimbursement for shower/swim legs on a routine basis. State agencies often paid for these devices with the proper documentation, although it was always a struggle to justify the cost to the third party. Private insurance was more difficult, but we did experience some success with them also. The Veterans Administration does have a policy for purchasing ancillary and backup prostheses. If I was ever pushed hard in this area, I dredged up the policy and, once it was introduced as evidence, the justification for ancillary prostheses was no longer an issue.
Establishing Cost Data
In a needs analysis, the initial costs should reflect the hardest data that can be obtained. The prosthetic records will provide the best source of information. I use a prosthetic timeline and cost chart to record all costs based on the prosthetic billings provided. It is often necessary to contact the prosthetic facility to make sure no records are missing. This will provide some history of the prosthetic costs up until the time of your analysis. This timeline can also justify the replacement rate for the initial period of the amputee's life expectancy. If it does not, you must be prepared to explain the discrepancy. If there is little or no prosthetic history, I have taken case histories from my private practice and used the billings to obtain beginning costs of prostheses. This can be a risky procedure, since the information is not part of the court record.
My next step is to conduct phone interviews with the plaintiff (if possible), prosthetist, and any other related health care provider or family member. I carefully record each interview on paper, including questions asked and responses. I am attempting to verify activity level, costs of prostheses, replacement rates and overall attitude. It is simple to interview when you represent the plaintiff, as everyone is cooperative. However, when representing the defense, plaintiffs will be hesitant to talk with you and the prosthetist may be hostile. The medical and prosthetic records will still be your best source of information, and I again emphasize that these are part of the court record and trial evidence.
Lastly, I verify hourly costs for labor and estimate a base yearly amount for soft goods that are replaced periodically.
Completing the Report
Now that I am ready to write the analysis, I provide a cover letter with information gathered during the data collection period. I use a custom computer program to provide projections of the cost for each type of prosthesis. The program provides a yearly breakdown of costs and a grand total projection of costs for the amputee's entire life.
The report is prepared and is ready to be sent to the attorney's office along with a bill for services. This is often the end of the job, with the exception of phone calls and a review of related materials. Most personal injury cases are settled out of court.
However, if the case is litigated, the job is only beginning. The opposing side may choose to hire their own expert and produce a conflicting needs analysis. Thus, you will have to defend your data. The weakest conflicting analyses I have seen are merely critiques of my analysis. The opposing expert has not created his or her own projection. When the Case Goes to Court
The needs analysis and cost projection are part of the trial process called discovery. After a suit is filed and the date is set for trial, each side has an amount of time to produce witnesses and give the other side time to question witnesses. During the discovery period, you most likely will be called upon to give a deposition. This is a meeting at a lawyer's office where a court recorder is present and both attorneys can ask you questions. This process allows both sides to gauge the strengths and weaknesses of their respective witnesses. Your deposition becomes part of the court record and is considered sworn testimony. So this is not the place to be unsure of yourself. I have been in depositions that lasted four and a half hours, because the plaintiff's attorney was trying to get me to contradict myself by wearing me down physically. I suggest that when you are fatigued and the heat is beginning to rise, ask to go to the bathroom. No one can deny this request, and this strategy can go a long way in heading off situations where you may say something you will later regret.
Never argue with the opposing attorney. This is rarely a situation that will enhance your position. If you do not understand the question than ask the attorney to clarify their question. Remember, the most convincing thing you can do is to tell the truth.
The final phase of any lawsuit is the trial. In my experience, only 10 percent of cases ever go to trial and only about 30 percent require a deposition. However, if you find yourself on the stand, you must be prepared for the worst.
My most recent trial experience was in a Midwestern town. Although the defense attorney was quite congenial, another type of disaster occurred. I arrived at the airport after 25 hours of traveling (from Spain) with little sleep, only to find that my bag didn't make it. The trial was at 9 a.m. the next morning and all I had to wear were the shorts, tennis shoes and shirt I had on at the time. It was 9 p.m., and the only thing still open was a discount store where I promptly purchased new clothes. As I entered the courtroom, I imagined that the jurors would think of me as tacky at best. However, this was not the case. The lesson - there is always some way out of a dilemma with patience and a little luck.
I have referred to lower extremity prostheses for this article, although 10 percent of the analyses I have prepared have been for upper extremity amputees. The model works well for upper extremity with a few modifications. The period of time that the amputee spends in the initial phase is shortened, because there is less tissue change. Since upper extremities are not weight bearing, there is generally less atrophy than on lower extremities. Backup limbs and sports/shower prostheses are appropriate items for the active upper extremity amputee. I have also used separate categories for myoelectric limbs, body-powered limbs and backup prostheses.
I do not project ancillary devices in my analyses. I let the economist or life care planner handle cost and replacement projections for crutches, walkers, wheelchairs and other similar equipment since I have no expertise in this field. I also decline comment on the quality of prosthetic services rendered to the plaintiff. I never get involved in product liability lawsuits or lawsuits against prosthetists due to faulty prostheses or prosthetic management. I have reviewed dozens of patient notes from facilities throughout the United States and have found wide discrepancies among facilities. In general, the quality of prosthetic notes has improved throughout the years.
Experience
Serving as an expert witness can be a challenging and personally rewarding experience. However, while I was still in private practice, it became such a distracting, stressful sideline that I nearly quit. The time commitment of a minimum of 14 to 22 billable hours was never convenient, and the legal process does not recognize the priority of the amputee clinic or the late-night immediate postoperative fitting as a legitimate reason not to be ready. If you end up on the stand or even in a grueling deposition, the money never seems like enough compensation for the stress of cross-examination.
Any needs projection is based on the premise of returning the amputee to his or her previous lifestyle with the prosthetic technology available today. I use an amputee's previous activity level as the best predictor of future activity expectations and document this through interviews and court records. I break an amputee's life expectancy into three phases: initial, stable and geriatric. I generally project three types of prostheses for K level 2 or higher: primary, backup and shower/sports prostheses. I use prior prosthetic billings or conservative estimates to determine base costs for prosthetic projections. I always try to stick to my field of expertise and not get caught up in projecting other devices or offering testimony as to state of mind, pain or suffering.
The process of producing a credible needs analysis is a project that should not be taken lightly. To be a credible expert, one needs to be well versed in all aspects of prosthetics, keep abreast of new advances, understand the stages of life of the amputee, remain in touch with Medicare and VA guidelines, and be able to substantiate all claims that are made. If the lawsuit is against a local surgeon or hospital, you may want to avoid alienating anyone in the community. If the process seems daunting, I recommend referring the matter to someone who has the time and experience to provide a credible service.
For more information:
Life expectancy tables are available through the National Vital Statistics System and can be obtained from the government's Web site: http://www.cdc.gov/nchs/nvss.htm.
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