Examining the Medical Examiners

We’ve all heard the old joke about the patient who goes into his doctor and, raising his arm, says: “Doctor, it hurts when I do this.” The doctor cures him instantly by replying: “Well, don’t do that then.”

In my experience of about 30 years in claims, I find that some people really don’t need “to do that.” Others, as a result of an accident, have no option. The task of the examining specialist is, in a nutshell, to determine into which category the examinee falls.

Now that the Mar. 1, 2006 Statuatory Accident Benefits (SABS) changes are uppermost in the minds, if not the hearts, of Ontario insurers, it would be a grave mistake to push aside the ever-more-complex medical legal examinations, which are often (but not always) tort-based. I use the term ” medical legal,” rather than “defence medical” or “plaintiff’s medical,” as there should in truth be no difference in findings if the examining specialist calls it as he or she sees it. While it is obvious that, depending on the origin of the request for examination, a specialist can – and often will – say the same thing in different ways, the ultimate finding of ability or disability, impairment or non-impairment, should not change. To this end, in preparing for trial, here are eight key considerations in choosing your examining specialists.

THE RIGHT SPECIALIST

The initial key to ensuring the clarity and expertise of a report lies in the assignment of the examining specialist, or more precisely, sub-specialist. At National IME Centres Inc. (NIC), we do not simply accept an assignment as requiring ” an orthopaedist.” We need to know, to better serve the client, the nature of the injury. A shoulder, knee, hand or spinal injury will of course be best addressed by an orthopaedist who sub-specializes in those areas. This pays enormous dividends, not only when counsel has to report back to the insurer, but even more significantly as the matter progresses through mediation, arbitration and trial. So first and foremost, the specialist must ” fit the injury” or vice versa.

Consider the situation in which a psychiatrist, having experience in dealing with substance abuse, PTSD or a particular cultural background, is called to testify against a psychiatrist whose domain has largely been limited to general practice. No contest!

Similarly, in a situation in which medications are or should be a factor, one would not assign the examination to a psychologist who by qualification is unable to comment on medications. This of course falls into the realm of the psychiatrist and, in some of the more complex cases we see, even a pharmacologist – or, especially in “sick building syndrome” cases, a toxicologist. Physiatry can be a sub-set of physical or brain trauma, and ophthalmology can be retinal, corneal or neuro-ophthalmological; choose the wrong sub-specialist and you are, whether plaintiff or defendant, doing the other side’s job for them.

Although there are many such examples where a sub-specialty is vital to obtaining a definitive report, the very nature of litigation dictates that somewhere there is another sub-specialist who may have a contrary opinion. A second key consideration is to select the most qualified sub-specialist; after that, it’s crucial to make sure the selected specialist is able to bring out his or her findings on the stand! After all, at one time or another, all of us have had a teacher or lecturer who, although brilliant, is quite unable to teach simply because they cannot ” reach” their pupils. The trial situation with specialists is no different.

Recently, NIC had occasion to retain a neuro-psychologist to critique the recent report of one of his confreres. Interestingly, the critique brought out not only the selectiveness of the tests administered, but also the selectiveness of the tests not administered. This selectiveness, of course, served only to skew the reports’ conclusions in favor of the requestor. The fourth key consideration, then, is to ensure standardization of testing, so that you are in effect comparing “apples to apples.”

REVISITING REPORTS

It is not unusual for a client to ask a specialist to revisit a report. This is, in itself, seemingly innocuous – especially if the report does not adequately respond to questions posed, there is insufficient documentation to formulate a definitive opinion or new and relevant documentation has become available. [A caveat here: It’s okay for a specialist to say a determination is not possible at the time due to inadequate healing time, too much time and/or too many intervening causes from the date of the accident in question.] But the report departs the realm of the ethical when pressure is brought to bear upon the specialist to insert or omit opinion that, de facto, changes their true findings.

The fifth key consideration, then, is not to seek to influence a specialist’s findings. Sometimes the diagnosis really “is what it is.” Smart counsel will have no trouble accepting this from the right expert. They will in turn advise their clients to settle in accordance with the medical findings and make sure the damages are in line with those findings.

An insurer needs to know if a claim has validity, so they may properly reserve and seek to limit their loss by means of a fairly negotiated settlement. In other words, a report that finds the existence of a disability or impairment is not a “bad” report. It is, in fact, most helpful and equitable.

GOOD INFORMATION

The sixth key to a successful medical legal assessment is to provide enough information for the examining specialist to have the examinee’s full medical background – both pre- and post-loss. Typically this will include, where available:

* An ambulance call report

* Admission and discharge notes from the hospital

* Nursing notes, which are valuable because they speak to the examinee’s condition while in hospital

* Any treating notes or reports together with, in Ontario, an OHIP decoded summary (the summary details all treatment and/or consultations under- taken in Ontario for several years prior). Where cost is a factor and care is exercised, it is not unusual for counsel to cull their file of irrelevant documentation. While this practice is not essentially wrong, it is a brave counsel who will decide what to leave out.

Conversely, however – and this is the seventh key – it is totally useless to ask a specialist to comment on treatment, documentation or opinions outside the realm of their own discipline. At least once a week we at NIC are asked by some soul-searching counsel or adjuster to have an orthopaedist comment on a psychiatric finding, or a psychologist comment on a physiatric finding. In reality, the only thing the specialist of whom this is asked can legitimately say is: “This is outside the realm of my expertise and I defer to a specialist of the appropriate discipline.”

We do from time to time come across a specialist who is willing to comment outside their discipline, by virtue of the fact that they had once “spent six months on this topic while interning 30 years ago.” Such willingness always wilts away when they realize that they may end up challenging a specialist with 30 years of relevant experience. NIC will not, nor should any other facility, countenance such arrogance from a rostered specialist.

The eighth key is that a specialist is only as good as his or her last report. For this reason, we find that our roster of specialists is organic rather than inorganic. Deletions and additions are a fact of life. Adding a specialist to any roster does not involve “cold calling,” but rather careful research aided by CVs, sample reports, adjusters, counsel, the appropriate college and last, but by no means least, interviewing peers for a frank and honest appraisal.

There are many other keys to obtaining the “best” medical legal report but common sense and fairness, coupled with professionalis m and realistic expectations, lead in our experience to such a goal.