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Medicolegal Neurology, Overview Medicolegal aspects of the practice of medicine

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Posted 22 October 2009 - 11:58 AM

This is from America but the same pratices are used here in NZ.

eMedicine Specialties > Neurology > Introductory Topics
Medicolegal Neurology, Overview
Norman C Reynolds Jr, MD, Neurologist, Veterans Affairs Medical Center of Milwaukee; Professor Medical College of Wisconsin (retired)
Arthur Reynolds, MA, MHA, JD, Professor, University of Maryland University College Graduate School

http://emedicine.med...147832-overview
Updated: Sep 16, 2009

Introduction
Medicolegal aspects of the practice of medicine are unfortunately enigmatic and often very costly as practitioners feel compelled to use frequent "defensive medicine" options in routine practice because of a presumed pervasive litigation threat. Although many states have passed laws capping litigation awards, this does little to lower the threat of litigation in the mind of the practitioner who continues to order extra tests as a security blanket when extra tests are not arguably required to clarify a diagnostic alternative.

Since the proximate trigger to enter defensive medicine acts lies in the hands of the practitioner and not of the lawyer, the best way to improve medical costs stemming from a doctor ordering a test is to train the doctor in cost-effective decision making, not to enact litigation caps. Litigation caps may play a role in reducing the cost of malpractice insurance, but they will not affect the practitioner's perception of a pervasive litigation threat and will not reduce defensive medicine behavior.

With regard to legal disputes, mechanisms are in place to deal with resolution of conflicts. All legal proceedings are based on the idea that each party involved has its own point of view and that the truth is best determined by letting each side explain its case as clearly and as fully as possible. A neutral trier of fact (judge, jury, or arbitrator) determines how much of each side's story is correct. Negotiated agreements (ie, settling a case) are based on the background threat that if no agreement is reached, both sides ultimately will spend more money in preparation for the expensive gamble of going to court. In any legal proceeding in which medical aspects are at issue, each side may require physician experts (expert witnesses) to help explain their position.

Many physicians find this counterintuitive. Some physicians would like the court to appoint a single neutral medical expert, but in most court proceedings, this is impractical. Medicine and science gradually accumulate clinical data or research, evolving theories to successively approximate the abstract truth, which never can be reached conclusively. Unfortunately, this model of "truth" only works where collegiality and a disinterested search for the truth prevail. Conversely, the 2 or more sides in a legal case are vitally interested in the outcome, and collegiality only resumes after the case is settled. The common law of England inherited by the United States encourages "truth seeking" via a battle of litigants, in contrast to so-called civil law countries, which includes most of Europe.

Under these real-world conditions, the adversary model of the search for truth provides the only practical solution. Consider a typical medicolegal issue, such as whether an injured plaintiff genuinely suffers or is exaggerating his or her injuries. Although examination findings and test results may assist, ultimately the clinical decision often turns on an extremely subjective judgment, on which clinicians reasonably may disagree. Rather than having a single expert decide the matter based on subjective reasoning, better justice results from having two clinicians each advocate and explain the alternative points of view to a (disinterested, we hope) trier of fact.

To many observers, excessive litigation creates a culture of blame, eroding our sense of personal responsibility and agency, leaving business owners (including physicians) feeling defensive and embattled. Complex philosophic and economic arguments exist on both sides. In the narrow focus of malpractice, the plaintiff's attorney only articulates the naïve position of the patient or family (ie, a bad result means someone made a mistake) and, in most jurisdictions, cannot bring suit unless some physician agrees in writing that a mistake was made.

Medicine accepts that certain bad outcomes are unavoidable because of the nature of the underlying disease, variation in response to treatment, and diagnostic uncertainty. If the bad outcome can be explained convincingly to lay persons as resulting from something other than negligence, then the defense usually prevails. In most jurisdictions, juries have a natural sympathy to physicians, which must be overcome by the plaintiff's case to win. Unfortunately, the more devastating the plaintiff's disability, the more sympathetic the jury (or even a professional arbitrator), and the more persuasive the defense must be to prevail.

Physicians often question lawyers' ethics. Just as doctors feel a natural and unquestioned loyalty to patients, the attorney maintains a similar loyalty to his or her client and must do so in circumstances whereby supporting the client necessarily means that opposing parties will suffer.

The closest a physician usually comes to this adversarial situation is by advocating for a patient to a restrictive health maintenance organization (HMO) or insurance company or fighting with an employer regarding disability issues. Attorneys are mandated to avoid willful lying, misrepresentation, and other ethical lapses in support of their clients, but in the heat of circumstances, gray areas are invaded regularly. Any physician who becomes too critical should reflect on the proven high frequency with which some doctors misrepresent clinical information to insurers while advocating for patients.


Legal Basics
Types of law
State versus federal law

American legal jurisdiction is divided into federal and state jurisdictions. This unique feature of our constitutional jurisprudence stems from the Federalism inherent in our allocation of authority between Washington and the states. Most cases fall within the state court system, including both criminal and civil litigation. Federal litigation includes criminal proceedings related to federal crimes (eg, narcotics, immigrant smuggling), workers' compensation related to federal employment, maritime injuries, civil rights violations, and Americans with Disabilities Act (ADA) violations, as well as other interstate, national, and international issues that rarely involve medical testimony. The overwhelming majority of applicable tort, contract, and related case and statutory law is derived from the various states, that is, state legislatures and court systems.

Civil versus criminal versus administrative law

Legal cases may be divided into several categories.

Criminal cases include prosecutions of individuals (defendant s) by the state (ie, prosecution [district attorney, US attorney, or other jurisdiction]) for criminal acts ranging from simple misdemeanors to capital offenses. Neurologists may be required to comment on brain dysfunction as a mitigating factor in holding a defendant liable for his acts, on the mechanism or severity of injuries suffered by the victim of an offense, or on other medical aspects that bear upon the case.

Civil cases, in which a plaintiff sues a defendant for some physical or financial injury, form the bulk of all litigation. These include personal injury cases such as motor vehicle accidents, accidents in stores, and medical malpractice, as well as business litigation and estate litigation, which may involve medical issues.

Administrative law hearings include a variety of venues authorized under special regulations such as social security disability hearings and workers' compensation hearings. In these specialized circumstances, the hearing officer is usually an attorney, and an expedited procedure is used to speed up the case. Usually, for reasons of speed and economy, physicians and other experts use medical reports instead of personal testimony. Rarely, the personal impact of physician testimony may be perceived as critical by the attorney or other advocate or may be requested specifically by the judge or hearing officer. The absence of formal evidentiary rules is seen as flexibility by many litigants.

Common law
The American legal system derives from the English system of common law, which emphasizes precedent in prior individual cases. Overarching principles arise from individual cases and different jurisdictions may follow slightly different legal procedures or principles, depending on local case decisions and state regulations. For this reason, this article necessarily provides general directions only; the best guides to local practices come from county and state medical societies, local bar associations, hospital or personal counsel, and insurers.


Process
Pretrial litigation

The pretrial litigation process begins with a notice of intention to sue or a complaint that is filed with the court and served on the physician or other defendants. The subsequent litigation process may include a variety of pretrial motions, as well as a discovery process that includes an exchange of evidence between the involved parties. Discovery includes interrogatories, responses, and exchange of records including medical records, depositions, and (in personal injury matters) calls for an independent medical examination of the plaintiff or potentially of other injured parties. Prior to trial, settlement conferences or other hearings attempt to resolve the issues. The importance of the discovery phase can not be overstressed; indeed, it is often the most costly segment in any proceeding. A physician who is deposed places his or her reputation and demeanor before the scrutiny of all concerned; the prudent physician never is deposed unless fully prepared by counsel.

Trial

The trial may begin with pretrial motions (eg, admissibility of expert testimony or other evidence). Pretrial motions, such as for summary judgment, are critical points in litigation and often serve to end a matter early. If certain expert testimony is believed by the court to be irrelevant or unscientific, the court may circumvent medical testimony before it is presented to the jury. Formal court proceedings begin once a jury is selected and impanelled. Both sides may make opening statements or, in some jurisdictions, they are made only by the plaintiff (or prosecution in a criminal trial), with the defense opening statement reserved until its case is presented. After opening statements, the plaintiff (or prosecution) presents its witnesses and other evidence. This is followed by the defense case. Closing arguments provide a summation and synthesis of each side's arguments and are then followed by jury instructions from the judge.

The jury instructions are tailored from sets of standard instructions and are a subject of much contention in many trials, because what to leave in and what to remove may be critical for the jury's decision making. After deliberation, the jury delivers its judgment, which in some circumstances may be modified or even vacated by the judge (eg, to reduce the amount of an unrealistic monetary award). The judgment then is subject to appeal in a higher court, although appeals usually are denied except in unusual circumstances.

Witnesses

Witnesses may include both party, percipient and expert witnesses; physicians may find themselves in either role(s). A percipient witness implies someone who witnesses something, such as a bystander who saw the accident or a treating physician who witnessed medical injuries of an assault victim and the subsequent medical course. An expert witness is required to give opinions on such matters as standard of care, differential diagnosis, prognosis, and future medical needs. Generally, the attorney favorable to the witness begins the direct examination, followed by cross-examination by one or more of the opposing attorneys. To pursue loose ends, the first attorney may redirect, then the opposing counsel may recross. Strategy and practical aspects are discussed below.


Neurologist as a Defendant

Risk prevention
Although neurologists are sued rarely compared to many other medical specialists, the gravity of neurologic injuries is high, resulting in a higher average payout per plaintiff verdict against neurologists than against any other specialists.

Rapport and communication with the patient and family prevent more litigation than any other measure. Increasing time pressures need not impede effective communication; with all patients, this should begin before any suspicion of a bad result. The following points help in developing effective rapport with the patient:


If possible, review the chart before entering the examination room and maintain eye contact in the room, glancing down minimally for note taking.
Sit down to talk. The visit feels longer and of higher quality to the patient and he or she probably will hold the physician less responsible for a poor outcome.
Focus the dialogue. Listen carefully, paying attention to body language. Gently cut off rambling, as it robs time from productive interaction.
Encourage patients to bring lists of questions and use the list to prioritize the session.
Actively translate from medical terminology into English. Noncomprehension equals noncompliance.
To avoid miscommunication, quickly rephrase anything complex stated by the patient, asking if it is understood correctly.
Empathize. Ask how the patient feels and share feelings of optimism, frustration, and sadness. Do not overly blame or praise.
Gentle humor lubricates and does not wound.
Always ask about side effects of recently prescribed drugs; explain common side effects of medications currently prescribed.
Empower patients by explaining the alternatives and asking how to proceed. Provide resources of education where feasible.
To ensure compliance on complex instructions, ask patients to repeat what they are supposed to do, or write instructions on a prescription pad or other piece of paper. Make sure the writing is legible.
Ask for any questions when standing up at the end of the appointment. This gives permission to ask, but body language informs them the time for questions is brief.
Avoid unrealistic expectations but never foreclose hope. Hope of course should not be rendered manipulatively or in disregard of medical facts or standards.
The most time-consuming and draining family communication occurs when a neurologist is called in after a bad result (eg, unexpected arrest and brain anoxia). The neurologist rarely is at risk of becoming a defendant but is spending some "white knight" capital to diffuse the family's anger at other providers. This part of consulting is appreciated by the referring physicians, but the consultant never is reimbursed adequately.

Records must be complete but not ridiculously so. In office notes, customized records with blanks or boxes annotated by the physician are acceptable, and abbreviations need not be limited to the "standard list" acceptable in a hospital. Legibility always improves credibility with the jury and may prevent misinterpretation of the notes by other providers. Consider an electronic record to provide standardized documentation and legibility. Electronic health records may be costly to establish and must be protected against privacy invasions. The most damaging charge to a doctor is an allegation of "erasing" or despoiling evidence....that is, editing charts for self-serving reasons related to a trial.

Whenever a potentially risky decision or procedure is discussed with a patient (eg, whether to forego an imaging study for apparently benign headaches), writing "full risks/benefits discussed" or "full R/B disc" may be considered adequate, provided a standard and unvarying discussion regarding the risks and benefits in that clinical situation is used and this personal custom and practice can be testified to later.

Some authorities still recommend writing out all the risks discussed as more persuasive to a jury. A good compromise is writing out the specific risks when these are especially important (eg, "full R/B disc, incl terato, S-J" to specify risks of teratogenicity or Stevens-Johnson with anticonvulsants) or whenever the situation is especially high risk (eg, bad result, overbearing family).

Out-of-office telephone encounters are difficult to document, but even a brief note can be critical to a jury as proof of more detailed recollections. Many physicians keep a special notepad for recording these notes and affix them to the office chart the next day.

Dictated consults to the referring provider provide courtesy, coordinated care, and documentation. The patient's recall or desire to conceal (by unavailability of records) may influence the physician's understanding of the history; retelling the story puts this understanding on record. This gives the referring doctor (and other treating doctors to whom the letter is copied) a chance to correct any misunderstandings or to supply more data. They are responsible for reading what is sent to them. Risks, warnings, and instructions given to the patient also can be documented. When appropriate, the issues each provider is responsible for can be clarified.

During care of a patient, read the clinic or hospital chart. Reasonably, the courts hold physicians liable for knowing what is in other doctor's progress notes, the lab section, nursing, and other providers' notes. This has become increasingly difficult as nursing notes become separated from the rest of the hospital record.

Adding dated chart notes for the next 2 days about lab results and phone interactions is acceptable, but once served with a lawsuit, add nothing to the record. Anything added will be discovered (tracing pen inks, impressions on prior and/or subsequent pages), and no matter how innocent the addition seems, it always appears self-serving to a jury. Whatever you feel compelled to write should be put in a confidential memo to your attorney. In sum, the best way to approach charting even for high-risk patients is with accuracy, honesty, and reasonable language suggesting the patient is grasping the core and ramifications of what is transpiring. If the patient cannot understand, ensure that a companion for the patient can.

Medical record storage on computer creates new temptations to alter the record. Do not do it. Keystroke logs can be checked. In addition, hard copies of the record may exist. The two versions make devastating exhibits when blown up for the jury.

Teratogenicity is potentially the most expensive area of neurology malpractice risk. Always consider teratogenicity when prescribing medication to a young female, especially one that may be taken for decades (eg, anticonvulsant). Develop a standard discussion on this matter and write "full R/B, including terato" in the chart. Also note whoever else was present (eg, husband, sister, mother).

Pay attention to instincts. Any time "bad vibes" are received from the patient or family or any untoward reaction or complication ensues, sit down and think. Review the differential diagnosis, including psychiatric issues (eg, substance abuse, transference issues). Ordering more tests or consultations may be the answer; referring the patient to another neurologist for a second opinion and a fresh start may be a better answer.


Types of malpractice lawsuits
Legal theory of negligence
Malpractice suits usually are based on the legal theory of negligence, requiring the presence of the following 4 elements:


Duty to treat: A doctor-patient relationship must be established prior to the alleged negligent act.



Breach of duty: The physician failed to follow the standard of care for the patient's condition. Standard of care is what a "reasonable" physician would do in similar circumstances. This is held to be an objective standard, although it is subject to the interpretation of different physicians. No single professional body or set of clinical guidelines is accepted uniformly as dictating the standard of care, and the standard differs among specialties.
Cause: The breach or negligent act must be a "proximate cause" of the plaintiff's injuries, which means the act was necessary for the injury when and in the manner it occurred (eg, cardiac arrest causes a patient's death, even though the patient would have died some day). Also, the injury must be a foreseeable consequence of the negligent act.
Damages: The patient must have suffered actual damage or injury as a result of negligence. Negligence resulting in the death of a patient who was terminally ill would not ordinarily rise to the level of malpractice.
Types of malpractice lawsuits


Battery: Battery usually refers to sexual assault of a patient, although other types of nonconsensual physical contact may fall into this category.
Abandonment: Abandonment is defined as discontinuation of the doctor-patient relationship by the physician without making adequate provision for continuity and transfer of care.
Emergency room coverage: This is an emerging area of liability. Until recently, patients had limited recourse against an on-call specialist who failed or refused to come in for an emergency room patient, as no doctor-patient relationship had been created. However, suits are beginning to allege failure to comply with the Emergency Medical Treatment and Active Labor Act (EMTALA), and this may have an impact on neurologists who were unavailable to attend to patients with spinal cord compression, cerebrovascular disease, or status epilepticus. Managed care coverage or lack of insurance does not reduce liability in these situations.
Breach of confidentiality: Privacy of doctor-patient communication or medical records cannot be violated for physician convenience or benefit. Different jurisdictions outline varying exceptions to this confidentiality, such as mandatory reporting of child abuse, domestic violence, seizure disorders, other conditions affecting driving safety, or infectious diseases. Credible threats of violence to another individual may trigger a duty to warn that individual (Tarasoff decision). These mandatory reporting requirements usually protect the reporting physician, but in situations in which the underlying facts are in dispute, lawsuits, although rare, can result. If Health Insurance Portability and Accountability Act (HIPPA or HIPAA) is unknown to you, you should become comfortable with its provisions.
Lack of informed consent: Informed consent is a process, not a form, and applies most often to surgery or medical procedures. Higher risk medical therapies also require an adequate explanation of risks and benefits, expected results, and alternatives. Standards differ, but increasingly, physicians are expected to follow what the reasonable patient wants to know rather than what the reasonable physician wants to tell. Vicarious liability may result from acts of employees or independent contractors (eg, neurodiagnostic technologists, therapists). Do not promise or guarantee a specific outcome if this can be avoided!!
Other types of physician liability


Personal injury: Nonpatients may slip and fall in the medical office. Rarely, a third person, such as an injured passenger in a car driven by an individual with epilepsy, may assert physician liability.
Libel: Consider charts as semipublic documents. Comments made in charts or to colleagues regarding patients rarely can become the basis for action.
Employee suits: Employee injuries are covered under workers' compensation insurance with rare exceptions. However, wrongful termination, sexual harassment, and discrimination under the ADA generally fall outside workers' compensation; currently, these suits are rare but are evolving areas of law.
Insurance fraud: As surveillance by the government and private insurers increases, opportunities for excessive or dishonest billing continue to decrease. Unfortunately, pressure for successful prosecutions continue to intensify, while the changing and sometimes conflicting requirements for service documentation and billing procedures multiply the opportunities for unintentionally breaking the law.
Federal programs (Medicare, Medicaid, Tricare) typically have the most complex requirements and the most draconian penalties for malfeasance, including fines, expulsion from the provider list, and/or imprisonment. The ongoing controversy regarding evaluation and management (E & M) documentation for Medicare exemplifies the many conflicting visions of good medical practice and documentation. While larger billing entities such as multispecialty practices and chains of diagnostic facilities attract the most attention, different fiscal intermediaries may develop their own screening procedures for detecting questionable billing patterns, potentially placing even solo practitioners at risk of inadvertent "red flagging." All physicians are well advised to remain informed on changes in this evolving area.
Automobile accident and workers' compensation insurers frequently are victimized by organized fraud, and any physician who suddenly receives a large number of injured patients from an unknown source (eg, attorney, physician, clinic) should be suspicious. Clues may include vague symptoms or histories of injury, multiple patients with similar accident stories or complaints, or a consistent absence of corroborating records or physical findings. Carefully avoid any arrangement that suggests a "kick-back" for referrals, including advertising or marketing arrangements.
Home health and durable medical equipment providers easily can "pad the bill" or create needs where none exist. Although these providers now are scrutinized increasingly, physicians should monitor their records for patterns of abuse and check with patients or families if reason exists to suspect generation of unnecessary billing or that requested equipment and services are not provided. Medicare maintains a "fraud and abuse" hotline, as do some state agencies.
Criminal prosecutions: In the past, good-faith actions by physicians triggered criminal prosecution in extraordinary circumstances, but an unfortunate trend towards prosecution for negligent homicide in some malpractice death cases has occurred. Physicians remain subject to the same criminal penalties as the general population for acts committed outside their profession. Criminal proceedings are managed by locally elected DAs or appointed US Attorneys. They have enormous discretion to bring or defer bringing charges. Thus, it is difficult to anticipate what a given prosecutor in a particular county may or may not do.
Licensure issues: With increasing consumer and legislative pressure for accountability, state medical boards often feel external pressure to act, and their only tangible sign of performance is physician prosecutions. Procedures vary from state to state. Licensure hearings are administrative rather than judicial, but representation by an attorney with experience in this area often is critical because the issues at stake are vital for the profession and reputation of the accused. The loss of licensure is handled as a civil proceeding; guilt need not be "beyond a reasonable doubt." In addition, attacks on one's license are not directly effected by malpractice proceedings or verdicts.
Lawsuit initiation
During care of a patient, physicians should notify their malpractice carrier immediately if a bad result occurs, if a situation may have risk potential, or if they are notified of intent to sue.

Requests to copy records are routine and common.


The physician's staff should know to separately file any material related to psychiatric, substance abuse, or HIV issues. Do not include these records in a routine copy of records unless they are requested specifically, with (as always) the request signed by the patient. Charge a reasonable fee for making the chart available.
Staff should watch the copy service to make sure nothing is removed or despoiled.
Train office staff to recognize a nonroutine request that implies threat of litigation and review that chart personally before copying. Add nothing. Put your thoughts and justification in a confidential memo to your insurer or attorney.
Do not contact the plaintiffs or their attorney to justify yourself. If the suit is groundless, the odds are strongly in your favor.

Any discussion with colleagues regarding the facts of the case is potentially discoverable material, although strictly emotional support may be offered or sought cautiously. Discuss the factual details only with discreet, nonmedical confidantes, such as spouse or family. Physicians may find the legal process humiliating, guilt provoking, and depressing. Consider professional counseling if necessary.

Let the insurer pick the attorney. Meet with that attorney and confirm that you communicate well, are compatible, and have the same general view of the case. If not, ask the insurer for another attorney. Special circumstances in which additional counsel retained at the physician's expense is advisable are discussed under Need for an attorney below.

Make sure to communicate all concerns clearly to the attorney, including relevant medical information, strategy questions, and personal fears. Your medical expertise may suggest new lines of defense and alert the attorney to unsuspected traps at every stage of the case; remember, however, that the attorney knows the law.

Never use e-mail to communicate to insurer, attorney, friends, or colleagues regarding pending or ongoing litigation. Fax or telephone calls are secure; e-mail is not.


Deposition specifics
The deposition is part of the discovery process. Opposing counsel wants to find out what the defendant will say when questioned in court, and both attorneys want to see the presentation he or she makes. Defendants are not paid for their time.

Schedule the deposition for your maximum convenience. You want to be rested, unhurried, and to feel as relaxed as circumstances permit. Schedule the deposition at the attorney's office or at your medical office when patients are not present.

Before the deposition, review the medical record in detail, including the chart and the entire hospital record, with nursing notes, unless instructed differently by your attorney.

Most often, the opposing counsel is excessively deferential and friendly. Rarely, they try to anger or intimidate the defendant to see how well he or she holds up under pressure. Never become angry, sarcastic, or argumentative. Do not be intoxicated or under the influence of medications at the deposition.

Do not try to research the relevant literature. Discuss it with the defense attorney before reviewing any textbooks. As soon as the opposing attorney is told what was reviewed, it becomes admissible evidence, including all material with which you disagree when taken out of context. Do not admit that any single text is authoritative, since the totality of the medical literature should be relied upon.

Understand the admonitions beforehand. Typically, these include reminders that the defendant is under oath, must answer audibly (no head shaking), can estimate but cannot guess, must make sure to understand the question, and can take a break at any time.

Listen carefully to the question. If the question is confusing, make the attorney rephrase it or break down a compound question. If the question supports incorrect facts or data, this may be explained as the reason an answer is not possible. Do not help the attorney rephrase the question. Always pause before answering to permit objections and to collect your thoughts. Answer truthfully but volunteer no information or opinion that was not asked for. "I don't know" or "I don't remember" is fine; if further questions prompt recollection, that information can be volunteered between later questions.

If asked, "Were there any other reasons?" do not say "No." Instead, say, "That's all I can think of at this time." This permits introduction of other points, if thought of later, at trial without impeaching the deposition testimony.

Avoid self-justification; just state what you did and what you saw and heard from the patient. Explain your thought process only when asked specifically. Avoid opinion, standard of care, or similar "expert" questions unless authorized by your attorney.

When your attorney objects to a question, this is a signal to stop and think. The question may contain a trap. You may request a clarification of the question, and if your attorney wants to huddle off the record, immediately stop talking.

Listen carefully when the attorney rephrases something you just said. Often your statements are misphrased unintentionally, but sometimes subtle changes are introduced deliberately to try to get you to agree to something different from what was said earlier.

Beware of questions that are leading, distracting, repetitive, compound, or insulting. These are all strategies to mislead you. Carefully examine the assumptions underlying any hypothetical question and be prepared to explain discrepant assumptions in the answer, since these can be read out of context in the court.

The defendant is never "off the record" while opposing counsel is present, and even the court reporter, retained by opposing counsel, may report things that were heard. Once the deposition resumes, the defendant can be asked "on the record" about anything said during the break.

When the transcribed deposition returns for signing, correct only those errors that significantly affect the sense of what was said. Numerous corrections can give the appearance of something to hide. That said, accuracy is key.

Reread the deposition and medical records before testifying in court. The opposition will take your deposition statements out of context in an attempt to impeach you. With the deposition fresh in your mind, you can more easily explain why your statements do not conflict.

Trial
Listen to your attorney regarding whether you should be present every day of the trial or only at key points. Your presence is useful to give the jury time to "get to know" you so that a human face on the defense counters the plaintiff's long face and doleful family. Attire should be formal and demeanor respectful. Based on your medical expertise, you also may give your attorney useful ideas on how to cross-examine the plaintiff's witnesses.

While listening to the trial, casual eye contact with the jurors is appropriate. Smile back if they smile. Avoid appearing stiff and inhuman or too eagerly ingratiating.

Behave professionally outside the courtroom as well, as jurors may be in the area. Do not talk to the jurors; smile if they try to speak. If they insist on talking, be as noncommittal as possible and discreetly discuss this with your attorney immediately.

Review your deposition section. Trial testimony is similar to deposition testimony, except that the jury assesses your body language and demeanor along with your words. Remembering that medicine is your area of expertise, strive to project confidence and sincerity without cockiness. Show compassion for the plaintiff's plight without excessive contrition for nonexistent wrongdoing. Turn to the jury as much as possible when giving answers, making eye contact freely with individual jurors, as they are the audience. Use simple English.

The defense attorney usually has the direct exam, giving you a sympathetic ally to explain what you did and for what reason. Be prepared for anything during cross-exam. Opposing counsel may try to confuse and anger you and may make you look uncaring or incompetent. Remain calm and professional at all times. The jury can see what counsel is trying to do, and your dignity negates these tactics.

Your attorney should object if questioning is hostile or confusing. If not, asking the judge for permission to address the court and then requesting that questions are framed more slowly or in a logical order is permissible. Do not request "respect" for your title or profession—asking for this appears diminutive in the eyes of the jury.

Listen carefully to all questions, especially if the opposing counsel rephrases or paraphrases earlier testimony. At trial, presume no error is innocent and always consider that opposing counsel is trying to slip something by you. Pause to collect yourself, then gently correct any incorrect statements in the answer.


Need for an attorney
Some advisors recommend always obtaining personal counsel apart from that provided by the malpractice insurer. Separate counsel need not be present for all aspects of the case but must be available at certain critical junctures. Medical colleagues (or insurance agents) can refer competent counsel without needing to know specific facts of the case. Lawyers engaged by insurers do have a fiduciary duty to their physician client and not to the insurance carrier. Conduct to the contrary is a serious breach of attorney ethics.

Under most circumstances, separate counsel is unnecessary, but it becomes mandatory any time the physician and his or her insurer have a serious conflict of interest. Such instances include the following:


Malpractice damages requested by the plaintiff exceed the physician's coverage, potentially resulting in personal liability. Agreeing to settle within policy limits and insisting on settling are different; the latter typically protects against personal liability if the insurer tries the case and loses beyond policy limits. Get help in this situation.
A substantial portion of damages sought is not covered by the policy. This varies from policy to policy and state to state. It may include punitive damages; fines or penalties for illegal acts such as discriminating against patients because of HIV status, race, or gender; or negligence involving specific procedures for which the physician is not covered (eg, clinical research, alternative medicine). Recent California decisions stretch "elder abuse" to become a "criminal allegation" to add to a malpractice case, falling outside typical policy coverage.
If the insurer represents more than one defendant, the facts of the case pit one defendant against another. A seasoned defense attorney does not permit cross-accusations among defendants, but if counsel cannot or will not prevent this, separate representation may be necessary.
If the insurer wants to settle when you want to hold out for acquittal or vice versa, separate counsel may be necessary. However, listen to logic and do not decide this issue on emotion.
National practitioner data bank
The NPDB is a federal government entity with many exclusions and limitations. That said, it can impact many doctors especially in private practice. Currently, any amount paid on a physician's behalf by a professional liability carrier triggers a report to the national practitioner data bank (NPDB), as do certain other occurrences. If the policy includes coverage for professional liability other than malpractice, settlements for other types of liability also trigger a report that may become a part of the physician's permanent record.

The NPDB must be accessed for initial medical staff privileges, renewal of privileges, provider contracts with insurers, and in case of subsequent lawsuit or investigation of a physician's medical license. This information currently is not accessible to colleagues or patients, although consumer activists continue to press for public access.

If a report is filed, notification of this filing and an opportunity to contest the information to be posted should arrive within 60 days of its filing. If the appropriateness of the report is upheld on appeal, placing a brief statement in the NPDB, describing any dispute with the report, is permitted.

Although physicians naturally fear any blemish on their record, a prior settlement usually is handled as a completely routine matter during application for hospital or insurance provider privileges. Often, a brief letter is requested explaining the case, which may be reused rather than customized to each request. This explanation, whether given in letter or during staff interviews, often is accepted without further inquiry.

Prior occurrences are scrutinized more closely during licensure investigations and may receive little or much scrutiny during subsequent malpractice suits, depending on the venue.

A single adverse judgment, no matter how large, typically does not affect the ability to obtain malpractice coverage, although rates may rise.


Neurologist As Expert

Rationale for acting as an expert
The medical profession has an ethical obligation to assist in self-policing medical practice and in providing an objective and honest opinion across a broad range of legal actions. In 1998, the American Medical Association (AMA) House of Delegates resolved that expert testimony is an integral part of medical practice and is subject to peer review. Some courts have accepted this opinion, upholding local and state medical societies in policing expert testimony, although this area continues to evolve.

Specific need for neurologic expertise is great. Injuries to the central or peripheral nervous system rank only behind orthopedics in frequency among injuries from motor vehicle or work-related accidents. Brain or spine damage often leaves the most devastating or persistent sequelae of any injury. The complexity of the nervous system renders varying opinions by different specialists, permitting competing views among neurologists.

Many treating physicians find that preparing and researching expert testimony sharpens their clinical skills. It can also lead to a lucrative consultancy.


Expert concepts
Unlike the percipient witness, an expert witness testifies to medical facts and to medical opinions, which may include a variety of areas, including differential diagnosis, standard of care, prognosis, future needs, a defendant's competency, and diminished capacity. Avoid the temptation to testify outside an area of direct expertise. Try to base your prognosis on reasonable clinical opinion and/or relevant literature, but do not become drawn into actuarial precision that exceeds available data.

Medical and legal authorities uniformly state that the expert witness must be objective and never partisan. When asked to review a case, assess the case honestly and explain the strengths and weaknesses of the case to the retaining counsel. However, for reasons discussed in the introduction, the "adversary model" of the search for truth necessarily applies to expert testimony.

In practice, the expert must tell only the truth and emphasize the data and interpretations that favor his or her opinion in the case, trusting that the opposing experts will inform the jury of any countervailing facts or interpretations. The successful expert must arrive at a correct opinion and present it to the court in the clearest and most persuasive manner possible. Remember, the jury (if there is one) remains responsible for weighing the evidence of the expert and the jury is the ultimate audience for the well-prepared expert.

Standard of care is an elusive concept (see Legal theory of negligence in Neurologist as a Defendant). It is defined by the experts in a particular case and therefore is highly subjective. As an expert, do not present minority opinions as the only acceptable approach to a clinical problem. If several approaches are acceptable within the medical community, outline this. Indeed, an expert should advocate main-stream empirically validated practices.

Negligent errors are precluded, but legitimate errors of judgment are not. The standard of care generally does not vary from one locale to another within the United States but may vary among physicians from different specialties.

Reasonable medical certainty is defined as a 51% probability of something being true. The standard for evidence in civil law is 51% probability, while in criminal law the standard is "beyond a reasonable doubt."

Expert witnesses are allowed to rely on a variety of sources for information, including hearsay (ie, secondhand information), which is precluded to percipient witnesses. Scientific evidence, personal experience, and medical literature form valid bases for opinions.

The admissibility of evidence changes somewhat from one jurisdiction to the other and continues to evolve over time. The trial judge has absolute control over the evidence admitted, subject to appeal. Experts who offer unusual or idiosyncratic theories have come under increasing attack; organized medicine increasingly moves to censure irresponsible or perjurious testimony. Some local and state medical societies review all contentious testimony within their locales, regardless of the practice origin of the expert, and report adverse findings to licensing boards. To date, the American Academy of Neurology (AAN) has censured one neurologist for aberrant testimony. Criminal prosecutions for perjurious expert testimony remain rare.


Determination of expert qualifications
Either prior to the start of trial or at the beginning of expert testimony, each judge determines expert qualifications. The AAN has adopted a set of guidelines written by the Council of Medical Specialty Societies. These provide that medical experts should be involved in active clinical practice with no more than 20% of professional activity related to expert testimony and specify other ethical aspects. Local and state medical societies may have other applicable guidelines that should be reviewed. The trial judge is the ultimate arbiter of the qualifications and suitability of an expert witness.


Compensation
Unlike the defendant, an expert witness is entitled to professional compensation for work as an expert based on time spent on the case, time lost from the office, and the physician's expertise.

Agree on compensation in writing prior to testimony. Medical experts should have a fee schedule that gives rates for record review, deposition testimony, attorney conference, trial testimony, and any other specialized medicolegal services. The attorney should sign this before beginning the case or scheduling the patient.

The plaintiff's attorneys occasionally are more likely to dispute an expert's payment, because they must pay directly for litigation expenses, unlike a civil defense attorney who typically is funded through a large insurer. Criminal defense attorneys also may be paying out-of-pocket, although they often can transfer the expenses to a government-funded defense fund.

To avoid disputes later, insist on prior payment for the first half-day of testimony before going to court (or full day for out-of-state testimony). Prior payment for record review or depositions is a matter of personal preference.

Attorneys may try to force a treating physician to testify for routine witness compensation, which usually is minimal. Under most circumstances, even a physician with a prior treatment relationship with the patient can insist on appropriate remuneration. If the attorney claims he or she can compel testimony (by court order or other means), seek advice from the local or state medical society, hospital, or personal counsel regarding local custom and legal options.

In most jurisdictions the physician, if forced to testify as a percipient witness, may refuse to testify to anything other than what is in the records or a result of direct personal observation. The absence of opinion testimony and medical expertise hampers the attorney, and this may prove an effective bargaining point before trial to secure proper payment. Hostile testimony should not be threatened overtly over payment issues.

Agreeing to be paid for expert testimony depending on the outcome of the case (ie, contingency) is unethical, as it may unduly influence testimony.

When the patient is indigent and/or the plaintiff's attorney has little money, the physician ethically may choose to reduce or waive the usual fees for expert testimony, but this is the physician's choice.


Expert testimony
Attorney conference

Ideally, some discussion should take place with the retaining counsel prior to the deposition. Typically, medical records and other information are provided previously in time to process the information and offer clear, objective opinions to counsel.

Plaintiff's counsel, operating on a more slender budget, may try to rely exclusively on your chart and personal data collection, but this risks impeaching your testimony at deposition or trial. If you are aware of existing records that you feel you should see, explain the reason to the attorney. If these records cannot be provided, you may need to qualify your opinions in your testimony. If these or other records become available after your deposition, the opposing attorney has the right to redepose you regarding any change in your opinions and also must provide payment again.

The expert witness and the attorney ethically may agree on how certain opinions will be phrased and not to alter the opinion dishonestly. Certain opinions may be suppressed as outside expert designation, even if they are within the expert witness's medical expertise.

Never communicate with an attorney or anyone else by e-mail regarding an unsettled case, as this is not secure from discovery. Indeed, care should be exercised in all such communications.

Depositions

Review the Deposition section under Neurologist as a Defendant. Most of this remains relevant.

The principal difference is that as an expert, your carefully considered opinion is the main portion of the deposition, in addition to consideration of personal examination findings and other facts that support those opinions.

Be prepared to explain all the bases of your opinion, including facts and interpretations within the case and whatever external information was considered. Specific literature obtained for the case must be provided for opposing counsel to have his or her expert's review.

The amount of specific literature provided at deposition is always a tactical decision to discuss with counsel. Texts or literature specifically relied on will be requested by opposing counsel, forming the basis of questioning at deposition or trial. Accepting any text as "authoritative" is problematic, as few experts agree with every sentence in most texts, especially when taken out of context. At times, certain articles may be so relevant or authoritative that providing them helps dispel certain issues and, rarely, settles the case.

Similarly, volunteering information or opinion involves strategic considerations. Educating all parties generally is helpful; occasionally this eliminates certain issues from contention and, rarely, may settle the case. Preparing the opposing counsel to cross-examine the expert witness more effectively at trial, however, has tactical disadvantages. Not volunteering information that was not specifically requested may be an advantage at trial. However, if certain opinions or evidence are not broached in deposition, introducing them at trial may be forbidden. The retaining attorney must handle this last issue.

At trial

Counsel meets or talks with the expert witness prior to trial. Listen carefully to the rehearsal of your testimony. Make sure counsel understands and can elicit any special qualifications you have to address the issues in the case. Be prepared to offer questions that permit clearer explanation of your opinions.

Review Trial in the Neurologist as a Defendant section.

Experts usually are excluded from the courtroom until called. Leave any clunky exhibits inside, but carry in the box of records to allow for last minute review and give the jury a clear visual impression of the work performed for the case. The "hypothetical" thus used must be factually and medically congruent with the underlying case.

Courtroom schedules always run late. Request to be scheduled at the start of the morning or evening session to avoid "trailing" other witnesses but be prepared to wait and schedule accordingly. Downtime spent waiting is time away from the practice; charge for this as well. Bring something productive, such as journals or other unrelated review material, to pass the time.

Since sitting inside the courtroom is not allowed, be prepared to make a good visual impression on jurors while waiting outside before the session or immediately on entry to testify. Avoid looking angry, rumpled, or harassed. A visit to the restroom to check appearance prior to testimony is recommended. The best witnesses in any proceeding appear sincere, composed, humane and confident. Sarcasm, wit, humor and pomposity are dreadful.

Explain clearly to the jury, maintaining eye contact. Jurors become bored easily. Use a limited number of medical terms and explain those that are used. Do not become flustered under cross-examination.

Use exhibits or other aids to explain material to the jury. Assume the jury is tired and inattentive; getting up to draw a picture or to show an x-ray wakes them up and helps them recall your opinions. If able to draw simply and clearly, request paper and magic markers in the courtroom before testifying. Remind the attorney that the drawing can be marked as an exhibit for jurors to consider in deliberations. Weigh the use of various space-age technologies carefully; while they can genuinely clarify, they can breed juror distrust of a "too slick" presentation. Provide concrete exhibits whenever possible (eg, an operating table to show how a peroneal palsy did or did not occur against the stirrups).

Do not go out on a limb. Becoming too much of an advocate is obvious to the entire court. Avoiding unwarranted speculation is always best. Speak with and from authority and expertise.

The more critical the testimony, the more the opposing attorneys will try to discredit an expert witness on cross-examination. Be prepared for anything and never become angry.


References
Beresford HR, Gilman S. Neurology and the Law: Private Litigation and Public Policy. Contemporary Neurology Series. Philadelphia: FA Davis;1998:51.

Mackauf SH. Neurologic malpractice: the perspective of a patient''s lawyer. Neurol Clin. May 1999;17(2):345-53. [Medline].

Reynolds N, Reynolds K, Reynolds A. Commentary: Medical cost-containment: you can get there from here". Academic Medicine. 1998;73(10):1036-1038.

Sinbar SS, Gibofsky A, Firestone MH. Legal Medicine. 4th ed. St Louis: Mosby;1998.

Weinstein JB. Expert witness testimony: A trial judge's perspective. Neurol Clin. May 1999;17(2):355-62. [Medline].

Weintraub MI. Documentation and informed consent. Neurol Clin. May 1999;17(2):371-81. [Medline].

Weintraub MI. Expert witness testimony: An update. Neurol Clin. May 1999;17(2):363-9. [Medline].

Keywords
malpractice risk, medical malpractice, expert testimony, deposition, trial testimony, risk management, medicolegal neurology

Contributor Information and Disclosures
Author
Norman C Reynolds Jr, MD, Neurologist, Veterans Affairs Medical Center of Milwaukee; Professor Medical College of Wisconsin (retired)
Norman C Reynolds Jr, MD is a member of the following medical societies: American Academy of Neurology, Association of Military Surgeons of the US, Movement Disorders Society, Sigma Xi, and Society for Neuroscience
Disclosure: Nothing to disclose.

Coauthor(s)
Arthur Reynolds, MA, MHA, JD, Professor, University of Maryland University College Graduate School
Disclosure: Nothing to disclose.

Medical Editor
Stephen A Berman, MD, PhD, Professor, Department of Internal Medicine, Section of Neurology, Dartmouth Medical School; Chief, Neurology Service, White River Junction Veterans Medical Center
Stephen A Berman, MD, PhD is a member of the following medical societies: Alpha Omega Alpha, American Academy of Neurology, and Phi Beta Kappa
Disclosure: Nothing to disclose.

Pharmacy Editor
Francisco Talavera, PharmD, PhD, Senior Pharmacy Editor, eMedicine
Disclosure: eMedicine Salary Employment

Managing Editor
Richard J Caselli, MD, Professor, Department of Neurology, Mayo Medical School, Rochester, MN; Chair, Department of Neurology, Mayo Clinic of Scottsdale
Richard J Caselli, MD is a member of the following medical societies: American Academy of Neurology, American Association of Neuromuscular and Electrodiagnostic Medicine, American Medical Association, American Neurological Association, and Sigma Xi
Disclosure: Nothing to disclose.

CME Editor
,, Kathy Roarty Placeholder
Disclosure: Nothing to disclose.

Chief Editor
Stephen A Berman, MD, PhD, Professor, Department of Internal Medicine, Section of Neurology, Dartmouth Medical School; Chief, Neurology Service, White River Junction Veterans Medical Center
Stephen A Berman, MD, PhD is a member of the following medical societies: Alpha Omega Alpha, American Academy of Neurology, and Phi Beta Kappa
Disclosure: Nothing to disclose.

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Posted 25 March 2013 - 10:00 AM

Wow! I just read this. What a great source. The writers are highly reputable physicians.

I note in particular the following:

"...medical experts should be involved in active clinical practice with no more than 20% of professional activity related to expert testimony..."

Please check the info here.

http://truthliesdece...s-and-bias.html
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