Medical Malpractice Litigation
The Role of the Medical Expert
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.
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
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.
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.
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.
"After circumcision, most patients are unable to walk for up to year."
(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
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
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.
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.
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
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
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.
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.
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.
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
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;
- 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.
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.
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.
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.
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.
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.
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.
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