Expert Witness from the perspective of the judge, TLABC Medical Legal Conference, Mexico, 2013

The following is from the rough notes I took at the Trial Lawyers of British Columbia Medical Legal Conference in Playa Del Carmen, Mexico, 2012.  The Hon. Marion Allen, having served 24 years as a judge was obviously an expert herself on expert testimony.  Even by Mohan standards she was well qualified to be the keynote speaker at this conference. What was immediately obvious was her intimate knowledge of the English language and the way she chose her words, conveying maximum meaning with minimum waste. She was also very amusing, sharing anecdotes about her own career with honest humility.  Hon. Marion Allen is a marvellous presenter.  

Experts are expected to be experts in their area of expertise, she said. The expert must understand that he has a duty to assist the court - rule 11 6.

She clarified the "Expert's duty of neutrality", going on to say, experts will be considered more neutral if they work both for defendants and plaintiffs.

Family doctors are more often subjective and objective and the judges will sometimes make allowances for the fact they are the family doctor.  It is understood this is different from a doctor doing an IME.

The expert's has a duty of full disclosure

- there is no room in court for any dishonesty or lack of full disclosure

She went on to describe the  test for science versus junk science

-discussion of 'motion capture' technique tool admissability - judicial level of reliability - and opposing views presented and discussed . This case was chosen because it was so 'close to the line'.

To this end, she recommended strongly that lawyers reread Mohan when considering introduction of leading edge technology.

She then went on to discuss at length what she called were  "really, really" bad reports quoting a fellow judge who'd described  one such engineering 'expert'  report as  'so foggy to confuse gobblygoop"

One medical report, she described  contained no statement of qualification. In another report the medical expert said a woman couldn't return to work because of an injury  she suffered  at work but knew nothing about the MVA that was subject of the trial, 

She said that the lawyer had  screwed up that badly, letting that get to the court.

Another Medical expert  had simply catalogued the complaints but offered no opinion

Her recommendations to the expert were as follows:

- don't be arrogant 

- cross examination is adversarial - remain objective and don't be offended - expect to be vigorously cross examined.  

- doctors insist on professional independence - resist pressure to make statements with which you are uncomfortable - lawyers are advocates for their clients - an expert must stand firm giving a neutral position on the facts

- make sure you know where the trial will be held

- I realize that doctors are busy but it's recommended that a doctor pop into a public trial and hear a portion of a personal injury trial if they have been retained and are going to be an expert witness for the first time

- speak slowly so the judge can write. It is up to counsel also to keep an eye on judge to ensure the expert isn't speaking too quickly.

-speak up, the acoustics of courts in BC are not that could be desired.

-for lawyers - call the plaintiff first unless there is a good reason not to- the plaintiff's version serves as  the skeleton for the judge in hearing the rest of the trial.

- get expert reports before the courts

- ensure judge or jury understands the expert's reports

Expert Opinion or Advocacy, TLABC Medical-Legal Conference, Mexico, 2013

These are my rough notes from the Trial Lawyers Association of British Columbia Medical Legal Conference. Hopefully they give an idea of the presentation which I suspect could be accessed in fuller detail from the presenter or the TLABC itself.  Obviously, if one is interested they should seriously consider attending a future TLABC conference.  I've found them extremely informative and likely to help me serve my patients whose illness involves them legal dispute. Lesra Martin was a naturally talented teacher and made lucid what at first appeared obtuse and obscure. I'm sorry my notes don't do justice to his wonderful presentation.

Invisible Line in the Sand: Expert Opinion or Advocacy

Lesra N Martin, Martin and Martin Lawyers, Kamloops, BC

Graduated University of Toronto, and Law Degree from Dalhousie University

Was Crown Prosecutor in Kamloops, BC now practices primarily personal injury

TLABC Medical-Legal Conference, Mexico , 2013

Last week attended conference by Dr. O Shaughnassey, Psychiatric and Psychological Aspects, then Hon. Peter Wilson, presented 

- I thought they'd leaked my talk to them but instead I will summarize what they said and add to what I said, but this told me the role of the expert was a central issue

When I hired an expert I get reply

"dr x assumed the role of an advocate"

"Dr. X has provided opinions that go beyond the scope of his area of expertise"

"The report is speculative and argumentative"

When I talk to the family physician he responds "i'm an advocate for my client, and he is expected to be an advocate for his client". There is a clear difference between being an advocate for the client and having a report declared inadmissable 

Principles of law

Supreme Court of canada

- relevance

-necessity in assissting the trier of fact

-absence of any exclusionary rules

-a properly qualified expert

-RV Mohan 1994 

paragraph 16-8 issue of relevance is a qustion of law it is role of the trial judge to conduct a cost/benefit analysis.  

paragraph 19-22 - expert opinion must be necessary ---in regard to whether or not the information provided falls outside the knowledge and expertise of the jury.

Courts caution experts about dx of malingering 

Must be properly qualified expert

R.v Abbey 2009 ONCA

-refined Mohan criteria - in stage 1 , expert must be properly qualified

- trial judge is the gatekeeper - insure that the expert is relevant 'prior' to judge deciding jury may hear the expert

Expert opinion for his or her opinion

Description of any research done to perform their opinion

List of documents that formed opinion 

2010 Mazur

expert is required to state facts and assumptions

rule 11-6  expands under old rule  - know the basis of decision

Avoiding common pitfalls

- They must not become advocates , but express their opinion in objective and impartial way and not present argument

-

It's not the experts role to look for collaborating evidence in the documents.  it is not the role of expert to draw inference and making editorial comments

Medical Experts should be abreast of current academic literature and maintain certification.  

Encouraged lawyers to seek experts who are leaders in the field not just available

Exclusionary rules - Mohan - 

-expert has met all the requirements set out under Mohan

- it may not be that 'credentials' are sufficient, must also have specific expertise

Future Losses, Statistics and Assumptions, TLABC Conference, Mexico, 2013

This was one of the most intriguing  talks at the conference.  Howard Teasley, an accountant and economist, takes into account actuarial information, all manner of sources and 'number crunches' to give a reasoned future cost profile. He joked that the best thing with a sausage was eating it, not seeing what goes into it.  I have difficulty following my accountants information so its no surprise there are serious gaps in these very rough notes. It does give a jist of the very involved consideration that go into helping decide settlements. Again I apologise for the notes. The slides were informative and the presentation was excellent. It was great seeing it all come together and I fear I was listening and watching the maths on the slides more than making notes.

Future Losses: Statistics and Assumptions

Howard Teasley MA (Econ) CGA, Vancouver,BC

TLABC Medical-Legal Conference , Mexico, 2013

Future earning-capacity loss - diagnosis to estimate 

Distinguish future earning- capacity loss (general damages, hasn't happened, might not) from past income loss (has happened, add up, deduct tax and ei) and non pecuneary loss (assess without expert help

Follow a claim for loss of future earning capacity - and see where you matter -...

Translate experts - to expected and residual work

and translate these future loss into present day dollars

Assumed facts - hard part

-apply medical, occupational and vocational evidence to....

-define what earning capacity she or he had but has lost .....

-put all the education, employment files etc together

Has a paper in the handouts - determinate -  Jack Spark, prospective electrician - know what he was going to do and what he would

Indeterminate (fuzzy) - Ms Joan Smith, single mother, never worked but needed to , now impaired

Assumed facts

date of birth and normal life expectancy

(BC 05-07 life expectancies)

expected education

expected work

expected earnings (own record or statistics)

contingencies and expected working life, effectively given by the participation contingency

Effects of the accident

 - where the medical Ot and vocational repts

-injureies resolved and persisting

-effects on education if any

-effects on work (different job, shorter hours, retire early, statistical reduced capacity, etc

-effects on earnings

Pain a major cause of disability

Contingency statistics

Lower - average income entry job - $16,493

  higher - has high school diploma - $29,329

Less education more likely to work on feet rather than exercise mind

It's hard not to make $10,000 a year so that may be minimum estimate of loss

Other common loss patterns

-work fewer hours

-retire at 55 versus 65

Estimating contingency adjusted present value

Another example

40 year doctor has lost $50 grand  = 1 1/2 million since she plans to retire at 70

Investing a dollar at 2 1/2 %  return less than dollar

Supreme Court  = law and equity act - used 3 1/2 for general earning 

You're discounting

To get the 30 years she has to live

Actuarial/ multiplier considered 

She has to work full time

When we put all the information together

instead of 1 1/2 million gets 1 million instead

Higher your education the more cost when you don't work

Females have more competing responsibilities

Work history eliminates nonparticipators from comparison

Occupational Therapy Medical Legal Reports, TLABC Conference, Mexico 2013

These are my rough notes on a very interesting discussion of the increasing need for standardization in assessment of home support services, return to work and future costs assessments. This just gives a taste for the developments in the field and new tools available. Beth Inglis' presentation was excellent. 

"Keeping it Clean" How to assess Home Support Services Beth Inglis, B.Sc. OT, B.Sc. In Occupational Therapist JR Rehab Services. Inc. TLABC Medical Legal Conference, Mexico 2013 "I am the person who assesses function in home and work."

 I do OT Medical Legal Report'

Goals of the cost of future care report -maximize function independent -maximize participation - prevent medical complications

Cost of Future Care Report Medical care

Diagnostics Medication Medical supplies Allied health etc.

 Most cost of future care reports assess level of support and assistance needed (Fischer, 2009) Award amounts for "housekeeping" are valued at approx 1/3 of the non pecuniary wary (Kara Naish, TLABC , March 2012)

 We need performance -based functional assessment to determine individuals ADL's , can't just rely on self report AMA Disability - impairment of body function or body structure WHO Presence of disability or disorder is not an accurate predictor of recipt of benefits, workperformance, return to work - diagnosis doesn't alone determine this

Consider two individuals - however activity limitations are quite difference - functional assessment - a tool to measure and verify the objectivity and validity of costly items such as home support services (Fischer 2009)

Best Performance based ADL Assessment of Motor and Prcess Skills (AMPS) -evaluates the quality of performance of personal and instrumental activites of daily living (IADL's) Tests a person in arelevant and family environment as he/she performs meaningful and chosen ADL tasks Has been standardized internationally and cross culturally on 148,000 persons Consists of over 120 standardized ADL tasks Measures 16 ADL Motor and 20 ADL Process Skills --ADL motor observable goal directed actions - walks, lifts, transfers, paces, stabilizes...etc. -ADL process - selecting, interacting, carrying out individual tasks, modifying task, - chooses, gathers tools, sequences, notice and respond, search and locate - how a person accomodates to problems - ie notice and respond, benefit from something that happened minutes earlier, do they accomodate and change with learning

Motor and Process skills are ranked from easier to harder Person chooses minimum of 2 ADL of the 120 potential Each motor and process skill is scored based on: Effort - physical difficulty, clumsiness, or fatigue Efficiency - disorganization or undersirabl use of time, space or objects Safety - risk for perosnal or environmental damage Independence - pysical or verbal assistance AMPS computer software generates an ADL motor and ADL process score for the person - compared to 95% age matched healthy person ADL motor cut off -where people have problems ADL skills are one of best predictors of return to community

Ecological Validity - testing something they've chosen in their environment 25% chance that a process score will differ in laboratory and home OT should evaluate in home Need to balance overprovision and underprovision....

 HOme making costs Frequence of homemaking servciess 2 hours/ week yearlly 3360 10 years 33,600, 20 years $67,200 8 hours / week yearly $13, 440 20 years $268,000 about 

Question and answer

 AMPS - $400 to $500 for report

 What about patients with variability where waxing and waning pain - OT assesses this by saying to them to do it 'the best you can now' not the way you used to.

 Dr. Armstrong - recommended that as a scientist he'd like to see 3 assessments to get mean standard deviation - answer - AMPs can be readministered

 Also question about testing at maximal medical ability when score would likely have more long term validity.

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

The Essential Soft Tissue Injury Conference 2012

This Trial Lawyers Association of British Columbia Conference was put on with the Family Practioners of British Columbia.  Credits for attendance at the March 30, Friday and March 31, Saturday conference was provided to both doctors and lawyers. Personal injury lawyers came from all over Western Canada with maybe a quarter health treatment professionals.
Co Chairs were Robert Marcoux, Sean T. Pihl, Dr. Mark K. Frobb and Dr. Daniel R. Gouws.  I'm here at the end of the first day having coffee at the last break having enjoyed a full day. The conference began with lawyer Dick Byl presenting on Clement versus Clement, regarding as yet to be released Supreme Court statement on 'causation' and 'but for ' ideas regarding 'negligence'.  A fascinating detailed presentation of a wealth of information condensed down to truly pertinent information for doctors and lawyers.
Lawyer Manjot Hallen next presented a truly informative presentation on How to Write a Good Medical Report discussing, expertise, timeliness, billing and what to say and what not to say.  Excellent.  I think I knew most of it from experience but given as '10 commandments' made it truly memorable. I learned a couple of key pieces of information and the source of that requirement in the actual 11.6 laws governing expert witnesses.
Comorbities and Timelines, what to watch for when an injured client or patients isn't getting better was given by Dr. Daniel Gows.  I really enjoyed this South African gentleman, physician, and scholars expertise regarding 'chronic pain' and the sharing succintly of the central ideas that I as a physician deal with routinely.  He made obtuse clinical information clear to a general audience and I admired his communication skills in this regard.
The medical legal panel discussion included Dr. Lisa Caillier, MD FRCPC Physical Medicine, Vancouver, Dr. Raman Manchandra MD CCFP, family physician with special interest in pain management, Surrey BC, and lawyer Sean T. Pihl, Kelowna BC and Kara Naish, Richmond BC.  I love to hear Dr. Lisa Caillier who works with G F Stromm anytime. I've had the priviledge of reading her reports on overlapping patients and thoroughly admire her knowledge and empathy.  The panel was fascinating with great responses to practical questions from gps and lawyers in the audience. Most people were asking questions about ongoing pertinent cases and the insights were most helpful indeed. Very different medical and legal considerations in some regards, similiar in others. What was a delight was hearing how much the lawyers care for their patients and how much we all are working to a common cause, helping the patient get the accident behind them so they can get on with their lives
The afternoon was focussed on Thoracic Outlet Syndrome with truly scintillating overlapping presentations by powerfully impressive physicians, Vascular Surgeon, Dr. Anthony Salvian and Physiatrist Dr. Duncan Laidlow.
I've attended these conferences before and these presentations by Dr. Laidlow and Dr. Salvian were a couple of the very best medical rounds presentations I've heard.What was fun was the nature of the questions from lawyers and doctors that followed.
Now the talk on Myofascial Pain is beginning so I best get back to the conference.