Medical
Malpractice Litigation
Canadian Perspective
The
Role of the Medical Expert
Overview
Prosecuting
medical malpractice actions is more difficult in Canada than in many United
States and United Kingdom jurisdictions. Canadian judges tend both to
be more reluctant to find breach of medical standard of care, and to require
more exacting proof of causation. Medical defence is skilfully managed,
and is underpinned by a sophisticated intelligence network and generous
financing.
For the
litigator with aptitude and interest, there is an abundance of potential
causes of action. However, a master skill for success is the ability to
identify early the fatal flaws in the vast majority of enquiries, and
to invest time and money only in the relatively few which will probably
succeed. Primary screening is legal and paralegal; secondary screening
is medical.
Raw medical
expertise must be refined by the successful litigator. Most physicians
with a minority interest in legal medicine need time-consuming education
in legal concepts and requirements. The plaintiff advocate must not only
be bilingual in medicalese but understand in depth the ways the concerns
and constructs of medicine and law are dissimilar. With patience and practice,
the medical malpractice lawyer can learn to word questions so that the
expert medical witnesses reply in legally meaningful format.
Practice
Points
Conclusion
References
Medical Defence
Practice Points
Success in
medical malpractice litigation requires accurate reading of the main players,
including your own motivations.
"Weakest
link in the chain" thinking is particularly valuable in the economical
development of a promising medical malpractice case. The overall chances
of even modest success at settlement or judgment are about two-to-one
against. Economically, the Canadian
Medical Protective Association is a Goliath to the average plaintiff
sling shot.
Defence expert
witnesses more frequently than plaintiff are pursuing a part-time career
in legal medicine.
1. Philosophies of the Players
(a) Defence
The vast
majority of medical defence in Canada is underwritten by the
Canadian Medical Protective
Association (CMPA), a nonprofit, mutual defence association
of physicians.
The
CMPA vigorously defends every action that is
in any way defensible, irrespective of short term economic expediency.
In contrast with a personal injury action, where the amount
of effort worth expending to defend may be limited by a small quantum
of damages, the Association will incur considerably higher cost rather
than risk setting malpractice precedents. Economic commonsense may
require settlement of an individual small claim, but professional
reputation and long term strategy are more important.
Though
maintaining professional reputation takes precedence over settlement
of claims, however small, a dilemma may arise when there is blatantly
substandard care and plaintiff counsel insists on pushing for trial
even though the action will be defeated on causation. In these circumstances,
the plaintiff may get a better court-room steps settlement,
but this is a dangerous poker game.
The CMPA's
contract with client physicians is for unlimited indemnification,
with few exclusions. Settlements and judgments for ethical violations,
such as sexual impropriety, are not covered, but the Association will
in these cases provide defence counsel.
The Association's
policy requires member physicians to accept and cooperate with the
litigation strategies of designated defence counsel. This includes
cutting off all communication with the plaintiff, a policy which has
been well shown to increase the resolve of the plaintiff to pursue
legal recourse1.
(b) Plaintiff Client
You should
establish early your client's main purposes in pursuing litigation,
since some common motives are appropriate but others are liable to
defeat even a promising case.
Clients
are often looking for closure and healing. Patients who do not understand
the disaster which has overtaken them may react by looking for someone
to blame. Our culture, of course, strongly supports such external
attribution of misfortune.
Whether
or not unrealistic expectations have been fed by inadequate disclosure
of possible complications, many litigants are firmly convinced that
unsatisfactory outcome could have arisen only from medical malpractice.
As is often the case with personal injury claims, when medicine fails
to fulfil their expectations, patients may turn to the law to heal
the hurt.
If the
litigation becomes a central focus of their lives, clients may paradoxically
be too attached to the need for a successful outcome to do all that
is necessary to maximise its probability. They may need to be helped
to understand that all a successful action will do is put some money
in their pockets.
Lack
of effective communication and an uncaring attitude by the defendant
physician is a common motivator of medical malpractice actions. This
is somewhat easier to spot. The client often has difficulty articulating
what actions or lack of action by the defendant physician might have
caused the unexpected or poor outcome. Clients may even try to sue
physicians who have wisely but ungraciously declined to provide them
with treatment rather than name the foolhardy caregiver whose management
resulted in the poor outcome.
Rationalisation
or not, some clients cite protection of the community as their primary
motivation. The provincial or territorial colleges of physicians and
surgeons are the statutory instruments for detection of incompetent
and unethical physicians. Whether or not there is a promising cause
of action, formal complaint to the College will more effectively achieve
future public protection. Many clients confuse the Colleges with the
provincial and territorial medical associations, which exist to promote
the interests of physicians. The primary mandate of the Colleges is,
like the law societies', to maintain professional competence and ethical
standards.
(c) Your own Motivations
Medical
malpractice litigation can be a fascinating and varied area of practice.
It may provide a satisfying balance for the more mundane, predictable
and less risky business of personal injury practice. Similar medical
concepts, aptitudes and research methods are required.
Prosecuting
actions against physicians in your local community
does not, however, endear you to the brotherhood and sisterhood of
medical expert witnesses on whose goodwill depends your success as
a personal injury litigator. Only if and when medical malpractice
litigation predominates should you risk alienating local physicians
whose cooperation you value.
There
undoubtedly is a potential for generous returns on time invested.
The occasional compromised baby or anesthetic disaster will eventually
present itself to those lawyers whose interest and reputation are
known in the community. Every few weeks in Canada settlement or judgment
in the region of $3m will be given to a medical malpractice plaintiff.
However, the skill comes in efficiently screening sufficient enquiries,
and investing time and money wisely in the right suits.
Because
this is a high risk area of litigation, motives of improving standards
of health care and medical accountability need to be balanced by a
detached scepticism and sense of humour. Litigators incensed or scandalised
by apparent incompetence or callous indifference of a defendant physician
must learn to temper their missionary zeal with patient and painstaking
attention to detail - and with a willingness to recognise early a
fatal flaw in an otherwise promising action.
2. A Litigation Minefield
At the
time of writing, in 1998, there appears to be little defence interest
in alternative dispute resolution, and the traditional aggressive, adversarial
approach continues to dominate.
Prosecuting
a medical malpractice suit is quite unlike personal injury litigation,
where liability issues are usually fairly readily resolved and quantum
becomes the central focus. By contrast, the contentious issues of Canadian
medical malpractice are usually standard of care and causation.
In high
quantum actions, litigators venturing into the realm of medical malpractice
can expect to be treated to initiation by seasoned defence counsel.
Only after they have established their credentials by running a painful
and expensive gauntlet should such newcomers to the field reasonably
expect respectful and constructive communication from their defence
colleagues.
If causation
is in doubt, as it frequently is to greater or lesser degree, the defence
may initially side step the standard of care issues and attempt to abort
the action with a "so what?" expert opinion. If community standards
have clearly been breached by the defendant physician, plaintiff weakness
on causation may to some extent be shored up by an application for
trial
by jury, who will likely be softer on causation than a judge. Nevertheless,
a strong defence position on causation may be unanswerable, however
blatant the violation of professional standards.
3. Sobering Statistics
In Canada,
one claim is filed annually for every 50 doctors in practice, or currently
about 1400 claims nationwide. This rate has been increasing at 10% per
year over the last decade, but remains about a fifth the rate of claims
per physician in the United States.
A useful
rule of thumb for filed claims is that
two-thirds will be abandoned, over a quarter will be settled, 6% will
go to trial and of these two-thirds will be found in favour of the defence
(various 1990s figures from the Canadian
Medical Protective Association).
The low
success rate may arise in part because actions are initiated on severity
of outcome of complications rather than because of identified deviation
from standard of care2.
A practical consequence is that litigation strategy should be directed
primarily at settlement, while bearing in mind that the defence may
push to trial actions which are sufficiently vulnerable in one area,
though strong in others. This is particularly true if there is a danger
of setting precedents or the quantum is particularly large.
The other
side of the equation is that only a very small proportion of iatrogenic
injury is ever litigated. Perhaps 2% of the actionable incidents
which regularly occur during hospitalisation become the subject of a
suit for medical negligence2.
4. Economic Asymmetry
The well
known billion dollar reserves of the CMPA
stand in stark contrast to the resources of the average plaintiff
who, whether or not because of injuries, is relatively impoverished.
Because
a central long term objective of medical defence is to avoid setting
precedents, the CMPA
is motivated to spend far more defending a case than it would take
to settle.
Medical
defence is well placed to exploit the difficulty most plaintiffs and
their counsel have in funding the $100,000 in average disbursements
for cases proceeding to trial. Most clients, and many litigators, have
no idea of the potentially devastating cost of losing a medical malpractice
suit.
The
CMPA will characteristically
field 3 experts on standard of care, all saying much the same. To level
the playing field on this aspect alone will cost $5-10,000 on average.
Until recent
years, a single law firm in each province and territory defended all
medical malpractice suits. Even today, CMPA
defence remains highly centralised.
There is,
between many of the CMPA-appointed
law firms, an efficient and sophisticated intelligence network, to which
provincial trial lawyers' associations can barely hold a candle. Defence
counsel in other jurisdictions can thereby benefit freely from the lessons
learned in a particular settled case. Plaintiff lawyers, by contrast,
have no organisation for widespread dissemination of the expertise gained
in such cases. Even the amount of settlements is routinely subject to
a gag clause.
5. Hired Gun versus friend of the court
Few practising
physicians have a desire to see their colleagues pilloried for human
fallibility. Even though it is the medical profession that ultimately
adjudicates standards of care, there is a widespread perception among
physicians that plaintiff lawyers have undeserved success in some medical
malpractice actions.
The CMPA
can depend on a well-groomed stable of articulate physicians whose
bias is to produce a defence opinion. These medical specialists will,
of course, decline to comment if they see the claim as indefensible.
Otherwise, their expressed opinion will likely be unequivocally supportive
of the defendant.
"I tell
it how I see it" is the more typical approach of the physician providing
opinion for the plaintiff. Unfortunately this laudable attitude is better
suited to Alternative Dispute Resolution than to the prevailing adversarial
tradition.
Plaintiff
expert opinion is consequently less predictable and more expensive.
Even some experienced plaintiff counsel, to contain costs, have fielded
a single, well-supported opinion on standard of care, only to be defeated
by weight of numbers of defence experts, one or more of whom has succeeded
in giving credence to medical issues peripheral to the action.
Practice Points
Only when
you have
tested the proposed litigation strategy for legal viability should you
establish whether it makes medical sense.
The primary
medical screening should be undertaken by a physician with medicolegal
experience and a broad medical background.
Attempting
to use the same physician for both Resource and Trial functions is false
economy in any but the most simple, black-and-white cases.
Community
standards of medical care are more time sensitive and less geographically
determined than many litigators imagine.
All too frequently,
clear violations of acceptable medical practice fail on causation.
While you
may succeed in proving liability and your client's entitlement to costs,
the resultant damages may be too small to justify the investment of your
time in developing the case.
The Resource
physician has an ongoing ancillary role in the development of litigation
strategy and enhancement of the strength of your evidence.
1. Escalating for Economy
Careful primary
legal screening
will substantially reduce the numbers of malpractice enquiries that require
any medical consideration. Statutes of limitation may bar further consideration.
A number of enquirers are obviously psychologically disturbed, expressing
wide-reaching paranoia about medical professionals, for instance. It may
be evident that there is no cause for action, or that the complaint is
more appropriately addressed to the provincial college of physicians and
surgeons. Commonly the potential quantum of damages is so small that the
case is not worth pursuing.
Personal
injury lawyers taking on occasional medical malpractice cases will almost
always address statutes of limitation. However, they are sometimes so
incensed by the apparently blatant breach of professional standards that
they fail to consider whether the potential quantum of damages justifies
pursuit of an action. Unless actions are clearly indefensible after careful
legal and medical review, cases with a quantum of damages less than $100,000
need additional compelling reasons to proceed - not just a persistent
client.
Every medical
malpractice case carries significant risk of failure, whether early or
late, and both litigator and client must look at this possibility realistically
and determine ahead of time whether they can afford to fail. Expecting
to pay disbursements out of proceeds of settlement or judgment is not
realistic in this area of medical law. The emotional flavour of their
communications about the initiation of an action may indicate that the
potential client's feelings of violation are not being ruled by businesslike
commonsense.
After this
primary legal screening, some experienced counsel3
will pass complex cases through medical filters of decreasing generality
and increasing rigour. Beginning with medicolegally sophisticated nurses,
the potential actions are sequentially scrutinised by
legal medicine specialists with extensive clinical experience in general
medical, then relevant specialty and subspecialty areas. Using such methods
of secondary screening, legal specialists in medical malpractice may agree
to pursue only about one in 25 of the cases about which they receive enquiry3,
4.
(a) Strengths of the Clinical Generalist
Particularly
in complex cases, secondary medical screening requires
breadth of knowledge and clinical experience.
Initial
chart review by a subspecialist may put you on the wrong track because
s/he brings a medically invaluable in-depth focus which is however too
narrow for medicolegal purposes. Screening specialists may inappropriately
encourage pursuit of a claim because of their zeal to improve generalist
clinical standards.
An action
for missed diagnosis of coronary artery disease was far advanced
on the strength of an exhaustive liturgy of management shortcomings.
The reviewing professor of cardiology had failed to consider that there
were no corresponding causal implications.
In
reviewing and presenting a balanced and comprehensive account of medical
research, nonspecialists perform better than specialists. Recognised
experts and authorities in the field fail to take the necessary time
and care, and are more influenced by their subspecialist biases5,
6.
It is not
uncommon for client and litigator initially to misdirect the cause of
action.
Both client
and lawyer were concerned about a liver condition, whereas the premature
labour actually occurred because the obstetrician failed to take timely
action to prevent infection of the amniotic fluid (waters).
Had a hepatologist undertaken initial chart review, s/he would have
advised that the liver condition was medically harmless, and the litigator
might have concluded incorrectly that there was no cause for action.
Poor outcomes
attributable to substandard care commonly need to be understood in systemic
terms. Although a given action or failure to act may appear to be the
proximate and ultimate cause, complex hospital management involves a
redundant system of safety features, any or all of which may have failed
in the particular case. For this reason, in suits primarily directed
at a particular physician, early overtures by the defendant hospital
to be released from actions should be resisted.
A postoperative
routine for self-injection of morphine resulted in devastating brain-damage.
It initially appeared that the attending nurse's evident lack of training
was sufficient cause; it was only in the later stages of development
of the action that the skilful litigator was able to uncover the full
complexity of contributory negligence and thereby achieve an equitable
settlement.
(b) Resource versus Trial Physician
(1) Privileged communication
Effective
prosecution of a medical malpractice action requires identification
and shoring up of weaknesses in the case. However, all documents exchanged
between Trial medical expert and counsel are potentially disclosable
to opposing counsel.
An "invisible"
Resource physician can present essential warning of vulnerability
and criticism of litigation strategy, fearless of weakening counsel's
position or alerting opposing counsel to unrecognised strengths.
(2) Closure
The Resource
physician's screening report can also be, and frequently is, a valuable
tool in helping the client to come to terms with the loss, whether
or not there is sufficient strength in the cause of action to justify
the risks of pursuing a suit for medical negligence. The client may
be vindicated in his/her view that care was negligent but come to
understand that weaknesses in causation make a medical malpractice
suit a poor investment.
2. Standards of Care
(a) Academic Writings Versus Community Standards
Evidence
Based Medicine is
a child of the nineties. Although western medicine has traditionally
been based on the scientific method, much conventional and standard
therapy has been perpetuated by textbooks written by acknowledged authorities,
not infrequently without empirical proof of effectiveness.
For 30
years, authorities recommended calcium-channel blockers and
antiarrhythmic medications for heart-attacks, even though there
was no proof they worked, and there was evidence they were harmful.
Meanwhile, the same experts failed to advise thrombolytic therapy
and aspirin, even though research had shown they were effective
treatments7.
Since
the early 1990s, Authoritarian medicine has been formally challenged
by Evidence-Based Medicine to provide proof of effectiveness.
Where the
necessarily limited personal professional experience of a clinical Authority
is challenged by the wisdom of accumulated medical research, our courts
will progressively favour more the more global findings.
(b) Disclosure standards
(1) Communication Problems
Clinical
research in different medical specialties consistently shows low rates
of retention of information given prior to consent for medical and
surgical procedures. Recall deteriorates with increasing age and decreasing
education8, cognitive
impairment and external locus of control9,
and most noticeably with the passage of months, days and even hours
following the disclosure9,
10,
11.
"Within
one day of signing consent forms for chemotherapy, radiation therapy,
or surgery, 200 cancer patients completed a test of their recall of
the material in the consent explanation and filled out a questionnaire
regarding their opinions of its purpose, content, and implications.
Only 60 per cent understood the purpose and nature of the procedure,
and only 55 per cent correctly listed even one major risk or complication."11
(2) He
Said, She Said
Consequently,
disputed lack of informed consent is usually nonviable as a standalone
litigation strategy. The continuous presence of an articulate relative
or friend during all consultation may occasionally tip the scales
in favour of the plaintiff's credibility, but disagreements about
what was said are generally resolved in the favour of the defendant
physician.
That
habitual standard disclosure need not be documented has been established
by ample case-law. Unless they routinely provide detailed written
material, physicians and surgeons at most make a disclosure note of
only the most common or serious complications.
(3) Hindsight not Permitted
The objective
test of "a reasonable person in the client's situation" is the final
obstacle to success on "informed consent" alone as a litigation strategy.
Many clients have a difficulty getting their minds around the idea
that, oblivious to the actual outcome, they would
have consented despite considerably fuller disclosure of complications
which occur rarely.
(c) Clinical
Practice Guidelines
Much
continues to be written about the medical and medicolegal utility of
Clinical
Practice Guidelines (CPGs). At one extreme, attempts to embrace
the diversity of medical opinion can result in a prescription which
is vague and meaningless. At the other, CPGs may propose impossibly
high standards, incompatible with average competence or economic reality.
Community
standard is generally a stabilising principle, but Community standard
has occasionally been found unacceptable.
A recent
study12 measured
Canadian physicians' compliance with Clinical Practice Guidelines
of the Canadian Hypertension Society. Each basic investigation
was missing from nearly half the medical records. In nearly half there
was no record of lifestyle counselling, and advice was incomplete in
the majority. Less than a third of the physicians followed recommendations
for initial drug therapy.
3. Causation
(a) A Medicolegal Quagmire
Clinical
medicine concerns itself little with individual causation in the legal
sense. Even though growth of epidemiological methodology has been exponential
in recent decades, epidemiological theory remains rudimentary13.
To be
sure, rigorous criteria for general causation of disease
have been expanded and refined14
ever since Robert Koch expounded his Postulates for establishing causation
of infectious diseases 120 years ago. However, the application of causation
in the specific case is a different issue. Even when
all or most of the general criteria of causation are fulfilled, injury
may be only one of a number of factors which increase the probability
of the occurrence of the disease or symptoms in a given individual.
Indeed,
there is a major conflict between legal and medical paradigms (such
as they are). For example, from the medical perspective, an injury
may be a nonessential factor which pushes above threshhold
the probability that the chronic disease or symptoms will occur. "On
a balance of probability, would these symptoms have developed absent
the injury?" is a form of question unfamiliar to clinicians, particularly
those inexperienced in providing expert medicolegal opinion. It is a
concept of no relevance to the daily practice of the art of medicine.
Post
hoc ergo propter hoc
"After circumcision,
most patients are unable to walk for up to year."
This logical
fallacy is the basis of many illfounded medical malpractice enquiries.
Just because a serious complication of surgery is unexpected does not
there was de facto substandard performance.
Postoperative
infection is a frequent source of misperception. Although there are
a number of factors in operative technique which have been shown to
increase the occurrence, surgical sepsis can rarely be attributed to
negligence. Most operations have a recognised infection rate, cesarian
section and hysterectomy being particularly high, for
example. It is the speed of diagnosis in devastating eye infection (endophthalmitis)
following cataract extract which may be actionable.
(b) Natural History of the Untreated or
Optimally Treated Disease
The screening
physician can set the specifics of the individual case in context of
the often wide range of outcomes of the disease. Against the background
of medical research reports of series of similar cases, the client's
complications often appear less extraordinary.
There is
a tiny incidence of unheralded stroke in seemingly healthy young women.
The increment of additional risk of stroke among takers of today's low
dosage oral contraceptives is so small that it is not possible in most
instances to attribute the catastrophe to prescription of the birth
control pill. This is true even after factoring in cigarette smoking.
At times,
standard of care issues are truly so blatant that it may be worth taking
a calculated risk that a jury will accept a lesser degree of certainty
on causation. This happens regularly in the United States with actions
arising from delays in diagnosis of breast cancer. At about six months
of delay, jury decisions plateau in predominantly finding for the plaintiff,
even though there is no scientific underpinning for causation, on a
balance of probability.
(c) Diagnostic Error or Delay
(1) Benefits of Treatment Unproven
Many
common diseases have no fundamental medical treatment. Much therapy
for chronic diseases is only symptomatic and has no impact on the
natural history of those diseases. Even when standard management is
remedial to some degree, the wide range of possible outcomes bedevils
any attempt to show that failure to diagnose or treat had a material
impact, on a balance of probability.
In the
absence of a coronary event, typically thrombosis
or heart attack causing demonstrable and irreversible damage to heart
muscle, failure to diagnose coronary heart disease as a cause
of symptoms may have no provable therapeutic consequences.
For
coronary heart disease which is not yet of a severity to
warrant surgery such as reaming (angioplasty) or coronary
artery bypass, the management is primary prevention. This typically
involves detection and possibly drug treatment of chronically raised
blood pressure and cholesterol, together with advice about
obesity, smoking, sedentary lifestyle and diet. All these issues are
addressed occasionally by the reasonably conscientious regular primary
caregiver irrespective of the diagnosis of coronary artery disease.
Even
if one or two lifestyle issue have not been addressed, the plaintiff
expert witness will be hard pressed to show that this failure would
have made a material difference to the occurrence of a cardiac
event, on a balance of probability.
(2) Magnitude of Delay
A few
weeks or months of delay in the diagnosis of a cancer will typically
not translate into change of prognosis, on a balance of probability.
Many malignancies are already years old before they can be detected
clinically. In general, the time between competent diagnosis and death
from incurable cancer is short compared with the age of the cancer
at diagnosis. Moreover, some types of cancer metastasise
(spread) widely in the body before diagnosis is currently possible.
Similarly,
delays in treatment of bacterial meningitis result in demonstrable
harm only for cases with features so typical that most medical students
would have no difficulty making the diagnosis. Where the symptoms
are mild and nonspecific, treatment delays of even a few days cannot
be shown to be harmful. Conversely, aggressive and rapidly progressive
forms of the disease will, if not lethal, leave substantial brain
damage whether or not antibiotics are prescribed early.
In yet
other instances, the nature of the disease may be such that what sounds
like inordinate delay does not transgress community standards.
Bacterial Endocarditis is a relatively common and seemingly promising
source of medical malpractice litigation in which there is a good
chance causation of delay in diagnosis can be proven. However, because
of the nonspecific nature of initial symptoms, case series from various
countries and different decades consistently show average delays of
months in its diagnosis.
(3) Prognosis not Altered
Viral
meningitis or encephalitis may result in devastating
brain damage, and the presenting symptoms may be so nonspecific that
diagnosis is delayed for days. When the patient is eventually hospitalised,
s/he may require a high acuity of care. However, there is
still no curative treatment for the majority of causative viruses,
and earlier diagnosis would have made no difference to the severity
of the complications or the residual brain damage.
(d). "So What?" Defence
Opposing
counsel may attempt to abort the action by delivering expert opinion
to the effect that the claimed error of omission or commission had no
influence on outcome. They may legitimately trigger abandonment of the
suit without having to engage in adversarial positions about standard
of care.
4. Quantum of Damages
(a) What Would not have been Different
The actual
outcome must be viewed in context of the likely range of
results, absent the putatively negligent management. Unfortunately for
prosecuting medical malpractice actions, the individual outcome is often
well within this range, and the medical research studies are often insufficiently
detailed to predict prognosis without the negligence.
5. Medical Research
(a)
Evidence-Based Medicine
Lawyers,
and not a few physicians, are shocked to find that four-fifths of health
technologies have no scientific basis15.
Though treatment modalities may be standard and traditional, such that
neither patients nor physicians would question their appropriateness,
many have no empirical proof of effectivness. Not only are many therapies
so established that no researcher has investigated their efficacy, but
there are other treatments in routine daily use which have been shown
to be useless and potentially hazardous. Failing to prescribe or recommend
under these circumstances may contravene community standards but have
no impact on causation.
For 30
years, authorities recommended calcium channel blockers and
antiarrhythmic medications for heart attacks, even though there
was no proof they worked, and there was evidence they were harmful7.
Conversely,
many interventions are of proven benefit, but are not included in community
standards of care. The same experts failed to advise thrombolytic
therapy and aspirin, even though research had shown they
were effective treatments. Just as sometimes the law is an ass, medicine
can be a mule.
Postoperative
backache complicates general anesthesia for around 15% of women. A half
of these patients will still have symptoms a year later. Lumbar wedges
and inflatable supports have been shown to make a substantial reduction
in the incidence, but are not routinely used16,
17. In these instances
of putatively unacceptable community medical standards, plaintiff and
Counsel may have to be able and willing to appeal to supreme court for
precedent-setting.
6. Weakest Link First
Given the
continuing uncertainty of success of many medical malpractice suits which
pass primary and secondary screening, the most problematic aspects should
be given priority.
Sometimes
causation is self-evident or can reasonably be expected to be noncontentious
if breached standard of care can be established. The priority is to obtain
robust expert opinion on standard of care.
In other
cases, there are indicators that care has been substandard on a number
of counts, and being able to establish at least some negligence seems
probable. Although there may yet be no expert opinion establishing liability,
investment in an opinion on causation would be more prudent if this aspect
is more contentious.
Less often,
examination for discovery of the defendant physician may make or break
the case, and all expert opinions should be deferred.
7. Litigation Strategy
Resource
experts will tell you whether all the elements of your cause of action
make medical sense. A suit based on the presumption that a breach of medical
or nursing technique must have caused the postoperative infection is usually
doomed to failure. However, a devastating sequence of complications may
be attributable to negligent delay in diagnosing and treating that infection.
8. Questions for Medical Expert Opinion
(a) Medically crafted
Specialist
physicians providing expert opinion will recognise and generally respect
the terminology and construction of sentences worded by another physician.
Nevertheless, the author of the questions should not be formally identified
to the Trial expert physician if privilege of communication with the
Resource physician is to be maintained.
(b) Forced choice
The strength
of an expert opinion can be greatly enhanced if the specialist is directed
to focus on, and explicitly answer, carefully worded questions which
reflect medicolegally crucial concepts.
What is
central and important to the legal action may be medically self-evident
or uninteresting, and vice versa. The converse is also true:
medically novel or fascinating features may have no medicolegal relevance.
(c) Causation
The Resource
physician is often more conversant with the concepts of legal causation
than a relatively inexperienced medical reviewer. Understanding this
unfamiliarity, s/he can reword the questions for the Trial expert into
medically meaningful concepts.
9.
Questions for Examinations for Discovery
While the
mundane facts of the case must be established, examination for discovery
also provides an opportunity for counsel to pose medically crafted questions
for which the defendant physician is unprepared. The answers to such questions
can be valuable clues to successful prosecution of the case.
Expert Opinion - the Clinical Specialty
Physician
Practice Points
Expert medical
witnesses often need specific and detailed guidance with the concept of
Legal causation.
Standard
of care and causation may need different medical experts.
Medical expert
witnesses for malpractice plaintiff lawyers are a scarce resource.
Locating
a willing and medicolegally experienced physician who is perceived as
fairminded rather than a hired gun further restricts the options.
You and your
Resource physician may need to invest considerable time and effort in
diplomatic medicolegal education of the Trial expert.
The legally
inexperienced expert physician may perceive the court as a hostile environment.
1. When to Retain the Specialty Physician
(a) Your Client's Decision
Your client
is, after all, paying the bill, ultimately if not immediately. Nevertheless,
for economy of time and money, it is sometimes wise to defer expert
medical opinion until after examinations for discovery.
In laparoscopic
surgery, insufficient training or supervision measurably increases
the complication rate. There will often be nothing in the operative
report which would lead the reviewing surgeon to identify substandard
surgical technique, and the complications which occurred may be described
in the medical research literature. Nevertheless, identification at
examination for discovery that training short-cuts left the surgeon
on a learning-curve may indicate that the cause of action is viable.
(b) Preliminary Steps
2. What Expert to Retain
Because physicians
willing to provide plaintiff medical opinion in malpractice suits are
a scarce commodity, finding an expert with an ideal profile is often unrealistic.
Scarcity
of plaintiff medical experts is particularly a problem subspecialties
where the defendant physician is known to almost all his Canadian colleagues.
Pediatric cardiac and bariatric (morbid obesity) surgery are
problematic. In some actions, the medical issues may be so uncommon that
there are no Canadian authorities and a US expert may be the only viable
option.
Even though
they are fairly numerous and are often busy providing expert opinion in
personal injury cases, orthopedic surgeons are rarely prepared to consider
reviewing for the plaintiff in a malpractice action against a colleague.
(a) Standard of Care or Causation
Frequently
the peer physician best qualified to speak to standard of care is not
from a specialty most knowledgeable about causation. The expert on causation
in an action for failure to diagnose and treat a life-threatening infection
will likely be a specialist in infectious diseases, and this is rarely
the specialty of the defendant physician. Similarly, an oncologist expert
opinion will be required for causation issues in delayed diagnosis of
cancer, whereas the defendant is likely to be from another medical or
surgical specialty.
Expert
opinions on both aspects may be needed, and the causation expert opinions
may be more crucial to success than those on standard of care. Whereas
a general practitioner or emergentologist may have made a poor assessment
of chest pain, it may be that the conflicting testimonies of cardiological
experts about the impact of timely intervention will determine success
or failure in the case.
(b) Underqualified or Overqualified
In some
jurisdictions, medical defence strategy regularly includes attempts
to disallow expert testimony on standard of care on grounds that the
expert is not a true peer of the defendant physician. Thus, the defence
may argue that an academic physician cannot set standards for a nonacademic,
urban community standards differ from rural, a subspecialist should
not address the expected standard of care of a specialist with subspecialty
interest.
(c) Academic or Community Physician
In general,
academics with busy clinical practices are more ready to provide expert
opinion and testimony than nonacademics. They are, after all, generally
in the business of setting community standards in a medical school.
Defence counsel will often provide academic expert opinions for nonacademic
defendant physicians.
For the
most part, full professors and heads of department accept responsibility
for recommending colleagues with the appropriate expertise and willingness
to provide expert opinion. If not personally suitable or available for
the particular action, they usually see such delegation within the academic
department as a responsibility of their position.
Frequently
assistant, associate, and clinical professors' clinical practices are
as busy as the defendant physician's, and some are located in rural,
even relatively remote, communities.
Nevertheless,
at times it may be prudent or necessary to select a nonacademic physician.
3. How to locate the expert
(a) Networking
In Canada,
willing and effective plaintiff malpractice witnesses in some medical
practice areas are so rare that they are readily exploited to the point
of medicolegal burnout. Legal colleagues may be reluctant to divulge
names of physicians whose expert opinions have been instrumental in
bringing about satisfactory settlements.
Resource physicians specialising in legal medicine have their own networks
and databases of colleagues.
Physicians
generally have a better success rate in getting callsback from fellow
physicians than do lawyers. The reality is that physicians generally
have more trust for unknown fellow physicians than for lawyers. This
prejudiced trust/distrust dichotomy applies even when the purpose of
the requested callback is explicit.
However,
physicians who initially assent to a physician to review the medical
records may later reconsider, particularly if there is delay of more
than a few days before the lawyer makes contact.
(b) Electronic Database
The Canadian
Medical Directory is available on CD-RoM and on the Internet. Far more
detailed and versatile than the print version, this database can be
searched on many fields simultaneously and quickly. It is possible to
identify and locate, for instance, only those physicians who practise
a particular subspecialty in a couple of adjacent communities, who qualified
in a particular decade, and who do not originate from the same medical
school as the defendant physician.
(c) MedLine
Uncommonly,
not only areas of interest but also the likely stance of a potential
expert medical witnesses can be deduced from online review of abstracts
of medical research papers they have written. The authors may have published
a case study or even a case series illustrating a warning about a potentially
dangerous area of surgical technique or illness management which relates
directly to the particular action. Such publication is, of course, no
guarantee that the writers are willing to provide expert malpractice
opinion, particularly for a plaintiff. They may however be prepared
to name others who will.
(d) Quicklaw
Quicklaw
and similar databases of published cases provide not only opportunity
for critique of a potential medical expert's biases and performance,
but also the names of physicians who might provide secondary recommendation
if personally unable or unwilling. This source is limited in scope because
the great majority of actions for which expert medical opinion is provided
are abandoned or settled.
4. The first contact
(a) Establish the ground rules
For physicians
new to providing expert opinion and testimony, the rules of evidence
are a closed book. "Never underestimate the intelligence or overestimate
the knowledge..." applies to the neophyte expert medical witness.
Your expert
needs to understand that their comments are required in a circumscribed
area. Comments about the standard of care of physicians in another specialty
or subspecialty, on which the physician is not qualified to comment,
may weaken the force of the opinion. Unasked comments about causation,
or indeed any inappropriate area, may give the defence a valuable lead
for crossexamination. Conversely, if the expert is to address causation
alone, s/he must be encouraged to exercise restraint from straying into
standard of care.
(b) Conflicts
All the
defendants must be identified to ensure the prospective expert medical
witness has no conflicting professional or personal relationship.
It is
not rare for a specialist to agree to provide expert opinion, recognise
no conflicting professional or personal relationship with the defendant
physicians, but report a conflict after reviewing the records. Medicolegal
novices may quickly find, in discussing the medical issues with close
colleagues, that their activity in providing plaintiff opinion is threatening
to those colleagues, or that those colleagues know a defendant well.
On occasion, it is clear that the CMPA
network of physicians has encouraged a previously willing plaintiff
witness to change his or her mind.
5. Documentation to the expert
Medical and medicolegal records for review should be
organised, tabbed and indexed. It is better to provide too much than too
little, so long as the crucial documents are identified.
The initial
documentation should not, of course, include defence expert opinion. A
common error is to provide volumes of detailed hospital charts about reparative
therapy but omit contextual records which are of central importance -
general practice records documenting the evolution of a medical problem,
consultation reports and investigation results on which the decision to
intervene is based.
Amazingly,
at both independent medical examinations and chart reviews, physicians
frequently attempt to attribute causation on a "revisionist" account of
events, without reference to the contemporaneous medical records. Frequently
the general practitioner records are a source of valuable clues, but are
sometimes ignored if s/he is not a party to the action.
Unless privileged
communication with the Resource physicians is no longer valuable, no documents
from or identifying him/her should be sent to the Trial expert witness.
If the Trial expert alludes to such documents in a report, there is a
risk the defence will require disclosure of advice which should remain
privileged.
In practical
terms, duplicating sets of medical and medicolegal records for submission
to multiple expert witnesses can be a formidable task. As an alternative,
documents can be provided as scanned-in graphics files, over the Internet
or on a CD-RoM which will typically hold 10,000 pages.
6. Preliminary Report
(a) Format
As well
as avoiding the potential damage from having to acknowledge possession
of an unused adverse expert opinion, waste of time and resources can
be minimised by initial verbal opinion. A minority of physicians will
insist on "written or nothing", and they should for these reasons be
avoided if possible by plaintiff counsel. Furthermore, a Trial expert
who takes such an intransigent position is less likely to listen to
suggestions for improvement of format or content.
Though
various models appear in the medical literature from time to time, physicians
relatively new to legal medicine may benefit from formal direction about
the structure of a written expert medicolegal report. Even some physicians
who write medicolegal reports on a regular basis can usefully be reminded
diplomatically that certain components are required
- qualifications
of the expert;
- facts
and assumptions on which the opinion is based, and their sources;
- name of
the person primarily responsible for the content of the statement, perhaps
including a dated and signed curriculum vitae;
- findings;
- opinion
and conclusions.
In one
study18, only 1
in every 4 medicolegal reports reviewed was adequate for legal purposes.
Features
of expert medicolegal written opinions which commonly required attention:
- medical
proof;
- verification
of premises;
- clarification
of certain, probable in numeric format, and possible;
- distinction
between subjective and objective (reproducible);
- explicit
statements of Causal connection - In Fact and Proximate - between treatment
(whether appropriate, omission or commission) and injury, findings and
sequelae (both actual and postulated future consequences).
The
BC Whiplash Initiative19 has drawn up a useful list of
stylistic considerations for medical expert report writing:
- State
what would be medically expected with a certain type of injury or accident
- State
what was actually observed or appeared to be observed
- Never
use "never" in a report
- Never
use "always"
- Never
use humour or sarcasm
- Never
conclude that something "is" or "is not"
- Never
state "in my personal opinion"
- Never
use strong language
- Never
use words that can be considered judgemental, emotional, or insinuating
- Never
highlight text, except headings
- Never
italicize text, except personal interpretations
- Never
assign blame
- Never
refer to your patient as the plaintiff or defendant
(b) Reference Material
Even some academic physicians are unaware that Evidence-Based
Medicine has infiltrated the courtroom, and of the benefits of
supporting their own authoritarian pronouncements with more broadly-based
medical research literature.
The
Resource physicians can provide much of the background research papers
which Trial physicians could be asked to address in writing their
expert opinions. Nonacademic physicians will characteristically not
undertake comprehensive research to support an expert opinion.
(c)Opinions
Physicians vary a lot in their ability to understand
that, although they primarily appear at trial as a friend of the court
to offer expertise not otherwise available, their written opinion
is for the benefit of the plaintiff's position.
Under
crossexamination they should be encouraged to ungrudgingly acknowledge
weaknesses in the plaintiff's position and thereby establish their
credibility as dispassionate, non-partisan. Tactically they should
be presented as friend of the court.
In written
opinion, however, those weaknesses may not need to be addressed or
even acknowledged if they are not directly relevant to the issues
which the expert is asked to address. Physicians with little experience
as expert witnesses, and some with a lot, need to have this distinction
made explicit.
(1) Legal versus Medical Issues.
Controversies in medicine, both general and specific
to the issues of the case, can all too easily become an irrelevant
distraction in an otherwise well structured report. Resource physician
review of the Trial expert report should identify and articulate
such confusion.
Physicians
think very differently than lawyers, and it is often worth spending
time stating, and restating in different ways, the legal questions
that must be answered by the report.
(2) Detailed Questionnaire
There is strength in a carefully crafted, forced-choice
agenda for the written opinion, with input from the Resource physicians.
A danger of the approach is that the Trial physician may, in response
to such guidance, provide a strongly supportive opinion, only to
prove so malleable under crossexamination that s/he becomes a liability
rather than an asset to the plaintiff's position.
Delivering
the questions after receiving the first draft of
the written report avoids such railroading. The risk here is that
the reviewing physician may feel threatened by late receipt of questions
s/he has not considered, and may, instead of reconsidering, attempt
to shore up and defend conclusions which have been reached prematurely.
For example, a reviewing physician may assess as adequate the clinical
assessment of a fellow emergentologist, based only on the history
as recorded by the doctor. If the essential clues documented
by the admitting nurse are included, the picture can change dramatically
and the previously alerted reviewer may recognise the evaluation
of the patient's complaints as substandard.
7. Using the Expert
(a) Initial Opinion
It is useful to have a Resource physician review
an early written draft of the expert opinion for both content and
form. This is particularly valuable if the specialist is medicolegally
inexperienced.
Without
compromising the autonomy of the expert, various inadmissible and
inappropriate comments can and should be culled. In particular, some
physicians have difficulty resisting the temptation to comment on
standards of care outside their areas of special expertise. Some defence
counsel will use this opportunity of pruning inadmissible plaintiff
evidence to hack the opinion to pieces and thereby weaken its conclusions.
Though
already specifically asked, other experts will need repeated encouragement
to address causation, comprehensively and from a legal perspective.
(b) Pleadings
Both
Resource and Trial medical experts can usefully review all pleadings
for advice on both wording and litigation strategy. Though comprehensive,
plaintiff pleadings authored by counsel without physician input may
be eloquent on medically non-contentious or irrelevant issues but
lacking in focus on the crucial deviations from standard medical practice.
Conversely, although statements of defence are frequently highly predictable
in content, they are structured on tried-and-true templates and crafted
by well practised counsel with physician assistance.
(c) Discovery
(1) Preparation
Both
Resource and Trial experts can provide valuable insights and wording
of crucial questions for examinations for discovery of the defendant
physicians. When plaintiff Counsel does not have an in-depth understanding
of both the standard of care and causation issues from a medical
perspective, examinations for discovery of the defendant physicians
are often weighty on nonissues and featherlight on detail in the
crucial areas of medical contention. With Resource and Trial medical
expert input, much valuable detail of the defendant physician's
blind spots and faulty reasoning can be identified and documented,
despite careful preparation of the physician by defence counsel.
(2) Review Defendant's Transcript
Though
you may consider yourself an expert at reading between the lines
of defensive response, experienced Resource physicians are more
adept at spotting what is not being said in medical statements and
should be asked to comment in detail.
Having
a Resource physician attend examination for discovery of the defendant
physician is an expensive luxury in most cases, but may be invaluable
in a minority.
In
all cases, a physician familiar with daily clinical practice should
be more attuned to the subtleties of the defendant's uncoached replies
to unexpected lines of questionning.
(3) Proceeding to Trial
If
you have reached this point, you need to be very clear why the action
has not been resolved by abandonment or settlement. Bear in mind
that finding is for the plaintiff in only 2% of all malpractice
actions filed. Put another way, litigator defending physicians in
malpractice cases fail to predict the outcome in only one in 50
suits filed. Individual defence counsel may be relatively inexperienced,
but you can be sure s/he has consulted with a number of senior colleagues
in the firm before refusing to settle.
If
you are relatively new to the medical malpractice field, this may
be part of the rites of initiation by defence counsel. You may have
revealed a fatal error in strategy, even though you have the makings
of a successful action. You will be wise to take advantage of the
fresh perspective of the Resource physicians before proceeding to
trial.
Even
the defence policy of not setting precedents has to be tempered
by the risk to the defendant physician's professional reputation.
Settlements are as quiet as the CMPA
can make them, including a gag clause on the amount. Defence success
in this regard is illustrated by the question by many newcomers
to medical malpractice litigation, "Does the CMPA
ever settle?" As previously indicated, the answer according to their
own figures is, "Yes, in fully a quarter of initiated actions."
Where
community standard of care is clearly out of step with Evidence-Based
Medicine, there may be no alternative but to appeal to the
supreme court for a judgment that current standards are unacceptable.
Are you and your client in a position to finance the fight to that
extent - and risk losing?
(d) Trial Preparations
The Trial
experts should be asked to assist with the wording of crossexamination
questions on the conflicting and adverse research papers, both those
on which the defence experts are depending, and other literature more
favourable to the defence position. Similarly, Resource physician as
devil's advocate should be asked to identify the medical research which
supports the defence position, and which the Trial experts should then
be asked to address in rehearsal.
(e) Testimony
Lawyers in general, and litigators in particular, are
at home in court. This working knowledge of the rules of the game may
be a major factor in the relative comfort which lawyers appear to have
in suing their colleagues.
Physicians
new to providing testimony are, by contrast, in unfamiliar territory,
playing by rules which they have neither mastered nor fully understand.
That his/her professional integrity is not the focus of the trial may
not be as evident to the physician as it is to you.
Rehearsal
for crossexamination can provide the expert medical witness with not
only the likely content but also strategies for dealing with potential
traps. Certain familiar legal concepts - for instance, "thin skull",
"crumbling skull", "intervening act" - have no medical counterpart.
Your expert witnesses may require explicit schooling in pertinent legal
terminology and concepts.
(f)At Trial
The medical expert providing testimony needs to understand
clearly that s/he will be most credible and effective when acting as
friend of the court rather than plaintiff advocate. General Medical
Practitioners in particular may have difficulty in grasping that they
will discredit their testimony by championing the patient/client. Acting
as advocate for their own patients is daily activity for many clinical
physicians and this role is incompatible with providing valued expert
testimony. Expert Witness Code Of Conduct
Similarly,
physicians are used to answering all questions their patients put to
them, albeit with varying degrees of certainty. They are generally unused
to replying, "I don't know" and may need to be reminded more than once
that this is more helpful and potentially less damaging than a poorly
supported opinion.
The prevalent
medical habit of defining a medical term using half-a-dozen more jargon
words is hard to overcome. In rehearsal, it may be helpful for the lawyer
to model plain language definitions by way of paraphrase feedback.
Finally,
physicians who are assisting during cross-examination, including Trial
experts who have been excused further expert testimony, may need to
be schooled in the need to submit sparing and succinct written prompts.
Conclusion
Success
in a medical malpractice action depends on there being intrinsic strength
in many areas of the case. Mistakes in selection and strategy can be very
costly for the plaintiff lawyer and client. Continual medical and legal
teamwork in screening and in subsequent prosecution of the relatively
few viable cases is the most cost efficient and strategy for success.
Back to:
1. Role of the Medicial Expert - Overview
2. Medical Defence
3. Medical Screening - the Legal Medicine
Specialist
4. Expert Opinion - the Clinical Specialty Physician
5. Top of Page
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