Saturday, March 31, 2012

Writing Medical Legal Reports

Manjot Hallen, of Klein Lyons was introduced with a long list of accolades. He had a topic which was principally directed towards doctors and junior counsel.  I liked that.  It's always best that the best teach the basics.  Later I'd have a chance to speak with him in the break.
The fellow was a normal amiable pleasant sort until I put my specific legal question to him. I was asking him about a complex decision in which a judge utterly ignorant of science went off on a tangent of law of such utter irrelevance to the case "as I presented it".  In answering it , Manjot's head tilted and his eyes looked to the upper left quadrant. For a moment then, was like this big brain, had rotated in and he began his response. . It was an amazingly balanced response, considering all sides, succinctly shared and  suggesting possibilities of thought previously not  considered.  Next he was smiling and chatting pleasantly like a normal person.  I went away not at all surprised at his success, to date.
These were the notes I took of the presentation. The Trial Lawyers Association of British Columbia had a cd of the conference with relevant notes and references.  Manjot's slides were excellent. My notes don't do the subject justice because I only recorded the bits particularly of interest to myself.  The fact is doctors are required to write reports and Manjot Hallen has made it clear what is necessary.
Ten Commandments (of Medical Legal Reports)
Manjot S. Hallen
Rule 11.6 -  governs experts, expert must sign off on their report with your name and address
11.6b - must provide regulations
11.6 i - facts information is based
Supreme court also says
1. Thou shalt write your own report
  • Did you prepare the report?
  • Jones v M and Dhaliwal v Bassi
  • (Problem more often in engineering because they work in packs and senior engineer signs off)
  • Dhaliwal v Bassi - psychiatrist signed off as if it was own, but psychiatrist signed off on a registered psychologist in his office, should have been psychologist who signed off and the psychologist who was there.
  • what about when I have locums working for me - eg my locum saw pateint 25% of the time, generally rule of thumb is if you’ve seen your patient more than locum it’s okay,
  1. Thou shalt provide a CV - must provide an updated CV
Must provide more information than your designation and speciality area
Include your training and experience as well as lectures articles, classes you teach
Information needed to qualify you as an Expert
Can only provide an opinion in your area of expertise
3. Thou shalt clearly state the facts
  • Medical legal consultants vs General Practitioner
  • - Consultant easy - here are the facts, these are my assumptions and these are my opinions
  • for gp its okay to list clinical entries - these become the facts -
  • mixture of fact, hearsay (verbal complaints) and reference to documents (x-rays and MRI’s)
  1. Thou shalt provide a clear diagnosis
  • Have a clear diagnosis section or have the diagnosis clearly noted in your summary
  • Thos should be the easiest commandment for you to follow - this is what you are trained to do
  1. Thou shalt comment on causation
  • Did the MVA or Accident cause the injury?
  • Balance of probabilities
  • Using the standard you should be able to say if it is ‘more likely than not’
  • Not scientific certainty - is it 51% or 49%
  • Counsel relies on this opinion
  1. Thou shalt provide a prognosis
  • clear prognosis is great but not necessary
  • good, guarded and even ‘too soon to provide a clear prognosis’ is better than ‘prognosis is not possible’
  • Examples at end of Appendix A
  1. Thou shalt provide your report in a timely manner
Rule 116(3) - must be served 84 days prior to trial - no longer than 60 days
  • I have a letter I rarely use - I can report you to college of physicians and surgeons - i’ve used it only 3 times
  • adverse inference if report not provide by treating doctor (can devastate the patient)
  1. Thou shalt assist the court
Rule 11 -2 - duty to assist the court and not be an advocate
  • I recognise in giving an opinion to the court, I have a duty to assist the court and not be an advocate for any party. this report is prepared in conformity with that duty, and if called upon to give oral or written testimony in the trial of this matter, I will give that testimony in conformity with that duty
  • Carr v. Simpson (2010) BCJ 2083
  • it takes alot to be considered biased
  1. Thou shalt charge the appropriate fee
-The BC Medical association Guide for Medical Reports
GP -A00072 - $935.00
Medical legal consultant (specialist) $2500 to $3500.00
  1. Thou shalt not speak at length of irrelevant matters
  • need to have a general knowledge of what is relevant
  • dispense quickly with irrelevant visits - no need to elaborate at length
  • mention other relevant events/injuries that may efect your opinion on causation or your Diagnosis and/or Prognosis
talk given at the Trial Lawyers Association of British Columbia, Essential Soft Tissue Injury Conference, Vancouver, BC March 30 , 2012

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