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Cullen, Amanda; French, Michelle --- "Engaging the right allied health medicolegal expert" [2016] PrecedentAULA 24; (2016) 133 Precedent 53


ENGAGING THE RIGHT ALLIED HEALTH MEDICOLEGAL EXPERT

By Amanda Cullen and Michelle French

Allied health professionals are clinicians in physiotherapy, psychology, occupational therapy, vocational rehabilitation and speech pathology who work in parallel with medical and nursing professionals in the health sector. In all areas of allied health, hindsight and hands-on experience give senior clinicians a level of critical thinking far in advance of their junior counterparts. Becoming an expert clinician, however, is different from being a medicolegal expert.

‘Medicolegal experts’ are often not clinical experts (at least, not in the area they are providing an opinion on) and, equally, expert clinicians can perform terribly as medicolegal experts. This article addresses how to recognise the difference, how to engage the right clinical expert, and how to instruct them. While the focus is on occupational therapy experts, the same principles apply to other disciplines. The key messages are listed below.

Expert clinicians do not always know how to think forensically, and forensic reporting is difficult – clinicians will not necessarily know what is required of them as medicolegal experts, despite their many years of experience.

An expert in general is not always an expert for a specific client – there is a difference between acute care, post-acute and community work; between working with mildly impaired, moderately impaired and severely or catastrophically impaired clients; and between direct clinical experience and management.

A good letter of instruction is essential – even for a more experienced expert; a poorly expressed letter of instruction may elicit a ‘stab in the dark’ response. A poor brief is discomforting for the expert, makes it hard for them to prepare for the assessment, and can result in suboptimal reports.

QUALIFIED AND EXPERT

Senior clinicians, with their years of direct, relevant experience, are the obvious candidates to become medicolegal experts. However, providing expert opinions is often unfamiliar territory and giving evidence can be challenging; also, many expert witnesses have direct, relevant experience in some of the areas required, but not all.

The key lesson for the instructing solicitor is simple: witnesses need to be expert in that specific client population, have the experience to comment on clients’ needs over their lifespan, and have a thorough understanding of what is being asked of them. Always bear in mind that:

• not all expert witnesses are expert clinicians;

• not all expert clinicians can become expert witnesses; and

• not all expert clinicians make good expert witnesses.

BEING FORENSIC

A good expert witness can think, assess and opine forensically. Like any other skillset, this ability comes with experience. However, forensic thinking is not an automatic process; while it is learnt by trial and error, it can also be taught. Senior clinicians who have worked in the medicolegal field for 10 years will have a far greater understanding of the task, and be able to deliver their opinions far more effectively than those who are new to medicolegal work.

The skill of being forensic evolves from experience in the witness stand: withstanding cross-examination, peer critique, and direct, often harsh feedback from instructing solicitors. An expert’s understanding of the legal context also derives from this experience. It also comes from the many hours of generous advice that barristers, solicitors and paralegals offer along the way.

Instructing solicitors should assist their allied health experts to understand their responsibilities and their purpose. When engaging an expert who is new to the field, or in a matter of particular complexity, it is worth spending time identifying what you need to ask of them, and what you need to provide to them. It is also worthwhile having a discussion with the expert to tease out their particular expertise that is relevant to your case.

When engaging an expert who is new to medicolegal work, the following tips may help them to provide the best independent expert opinion.

Read the letter of instruction carefully – and ask the solicitor if anything is unclear.

Read any documents provided – and extract the most relevant detail.

Do not rely on a document uncritically if the injured person presents differently or where there is conflicting information – there can be errors in other expert reports, and injured people change over time. Confidently report any relevant observations.

Under no circumstances accept documents from the client or procure notes/documents from the place being assessed.

During assessment, experts should:

stick to their own area of expertise – and not transgress into other allied health or medical areas;

seek permission from the law firm before they call anyone other than the client and those who attended the assessment;

take thorough notes at the assessment, so that their accuracy can confidently be relied upon; and

be aware of the impact of the context of the medicolegal assessment – they are an external independent expert giving an opinion to the court, not an advocate or a treating therapist.

PRE-ASSESSMENT: APPRAISING THE TASK

Letter of instruction

When an expert witness receives a letter of instruction and supporting documents, the first thing they do is put together a file, similar to a clinical file, which allows them to record and report all communications and assessments about the person being assessed. Clinicians are good at making notes of phone calls, emails and plans, because it is a legal requirement for them to do so in their clinical practice. The letter of instruction and/or accompanying documentation should provide the expert with the following information:

The injured person’s age, family, social and living situation – the expert needs to know what standardised and non-standardised assessments they might need; whether they will need a second person with them for safety; and whether it is important to see the client in their home environment.

What the ‘legal’ injury is – for example, a 30-year-old man, with crush injuries to both legs as the result of a car accident has been medically stabilised and treated. His left leg has healed, but with muscle loss. In rehabilitation, he suffered a wound infection in his right leg, which was left untreated. The failure to treat this infection resulted in sepsis, and his right leg was amputated below the knee. In a health setting, we look at the whole person and the clinician is likely to see the injury as the bilateral leg injuries sustained in the motor vehicle accident. They may not automatically understand that the relevant injury is the amputated right leg.

What information you are asking for – an expert may not know how to contain their opinion to the specific issue. To refer again to the injured 30-year-old man with a right leg amputation: let’s say he also has a congenital shoulder dystocia. He may require mobility aids (that is, wheelchairs and/or scooters), which might not usually be recommended for someone of his age, because of his reduced ability to use walking aids (for example, crutches or walkers may not be an option given his reduced arm function). His poor shoulder function will affect his ability to do things as an amputee, and increase the impact of the overuse of his arms (which is likely because he is now an amputee). The upper limb rehabilitation he may require on his shoulders following a surgical repair which is unrelated to his amputation may not be relevant to his legal case. However, it may be relevant if the need for surgery arose because he now uses his shoulders in all transfers, and for all mobility. Being an amputee now may also make his recovery from surgery more difficult, or involve extra considerations (for example, additional care or equipment). The question of determining the damage related directly to the injury needs to be articulated well enough for the expert to understand the difference.

The information you do not want – if the expert is not required to cover the injured person’s medical history, or to quantify their needs related to an impairment that is not the injury in the case, this should be clearly stated in the letter of instruction.

Similarly, if the expert’s opinion about the history of events that occurred at the time the injury was sustained is not required, be clear on this point and avoid providing any irrelevant material. In a clinical report, clinicians will usually include any relevant information that adds to the clinical picture, whereas experts’ medical reports should address only very specific aspects of a client’s injury.


POST-ASSESSMENT

It is important to give the expert time to think, review and consider their opinion. A rushed report will contain loopholes and possibly ill-considered opinions that could potentially discredit the expert.

THE OCCUPATIONAL THERAPY ASSESSMENT

An occupational therapist will often insist on assessing an injured person in their home environment, and may also seek to observe the injured person at school or work. They might seek to speak to the injured person’s employer, best friend or relatives who provide support.

An occupational therapist assesses the functional impact of an injury upon a person’s life. At assessment, they observe how the person moves and performs functional tasks within their environment. They might ask the person to make a cup of tea to assess how oriented they are in their kitchen, how they plan and organise the task, how efficiently they execute and finish the task and if there are any physical components they need assistance with.

An occupational therapy assessment can take several hours. Often it is only at assessment that the need for additional information becomes clear. For example, the injured person might be working, but only in the family-run shop with one-to-one support. In such a situation, it can be invaluable to be able to ask the family member providing the support what help they provide to the injured person.

ENGAGING THE RIGHT EXPERT FOR THE RIGHT CASE

Many experts are unfamiliar with a client’s lifelong functional needs

There are many reasons why well-intentioned and very highly experienced clinicians might comment outside of their area of expertise. Firstly, they might not even be aware that they are: for example, an expert in learning disabilities might take on the assessment of a severely physically disabled person because they work in ‘disability’. Another example would be an expert speech pathologist with experience in swallowing assessments providing recommendations about technology needs for a non-speaking person because they work with clients with that specific injury or disability. It is often unintentional, but many reports lack depth and accuracy because the expert is not the right one for that particular matter.

Secondly, CVs can mislead lawyers in terms of understanding how that experience translates in clinical practice. We have seen CVs from experts commenting, for example, on the occupational therapy needs of a high-level quadriplegic, relying on their commendable expertise in vocational rehabilitation. An expert with an impressive CV can nonetheless be the wrong ‘fit’ for the injured person they are assessing.

’Getting the right fit’ is often a grey area in allied health. Unlike medical specialty, the allied health ‘specialisation’ is more poorly defined and can easily be lumped into a broad group, with very different direct clinical experiences.

Understanding these distinctions should allow instructing solicitors to recognise whether their expert, or the expert chosen by the opposing side, does or does not have direct, clinical experience of the relevant area. The key words here are ‘direct clinical experience’, and the question should be asked if there are any doubts.

Thousands of brilliant clinicians, but only a handful of brilliant medicolegal experts

Even a clinician with an impressive CV listing direct clinical experience of the kind of injury they are assessing might not be the best expert. Providing good expert opinion is not taught in university programs and rarely comes up in clinical practice.

Many of the clinical issues that arise in the legal context do not arise when giving a clinical opinion in a therapeutic setting. The classic example is where an expert is asked to comment on the impact of the injury for a person who has a pre-existing condition, but the letter of instruction states to disregard this condition. If working with an injured person clinically, all aspects of their pre- and post-injury life will be relevant and important: allied health clinicians are, by nature, holistic in their approach.

Allied health professionals are also used to working with funding bodies that have finite resources. They seek approval for input to achieve short-term aims. They do not consider the needs over the person’s lifetime, and they are often forced to recommend what they know ‘will be approved’, rather than everything they believe, as clinicians, their client requires. It is hard to stop thinking in that framework when writing an independent report about needs.

Nor do allied health clinicians typically know a lot about eligibility for goods and services post-injury, as it is generally the funding bodies which determine and define these. It is often very hard for allied health experts to provide opinions that do not recommend accessing services for which a compensated person might not qualify.

INSTRUCTING EXPERTS

An expert will not intuitively know how to assess a client thoroughly and opine within the boundaries of their expertise on the issue that you wish them to, if their brief is vague. Apart from reading the letter of instruction carefully and seeking clarification from the instructing solicitor if unsure, the expert should be instructed to:

• accept work only if they can say, in court, that they have directly worked with that particular client group;

• only make recommendations that they could claim in court they have direct clinical experience of implementing;

• sit on their report and think before finalising and submitting it – forensic thinking takes time;

• think of the individual’s pre-injury lifestyle and functional performance in all life areas;

• think of the individual’s future – this might involve multiple scenarios;

• think of the individual’s situation – a client living nine hours from Darwin will have different service delivery needs from a client in metropolitan Sydney. Consider where the clinician will travel from in order to deliver the services, where carers will be sourced, and how equipment will be trialled and prescribed;

• avoid repeating medical reports or quoting from them verbatim;

• avoid commenting on ‘causation’ unless asked to in the letter of instruction – some experts think that the instructing lawyer wants them to be clever and to ‘solve the case’. They should stick to answering the letter of instruction, and not advocate the case for or against, unless being asked to opine about the ‘fault’ that ‘caused’ the injury;

• recognise the difference between fact and opinion – the injured person’s opinion is not a fact; and

• understand their legal duty to the court and not withhold any crucial information gleaned from their assessment.

Following instruction

Instructing solicitors do not always fully understand the functional or long-term impact of a client’s injury and hence may not provide comprehensive instructions. Experts should therefore think about what is being asked of them and go back to the solicitor if any additional issues arise during the assessment that they believe might be relevant.

When reading experts’ reports, solicitors should also ask:

• Does it answer the letter of instruction?

• Did the letter of instruction ask all that is required?

• Are the facts consistently reported?

• Is further information required to provide a full opinion? For example, has the expert said ‘Mr Smith will need speech pathology input again in 10 years’ without quantifying?

Costing schedules

Allied health experts are not generally accustomed to providing costing schedules; where these are required, experts will need to be asked to make their recommendations in a manner that can be quantified by an actuary.

THE EXPERT IN THE STAND

Most allied health experts know nothing about the law. They have no legal training, and medicolegal issues do not form part of their training. They need to be briefed by counsel.

Not many allied health experts get to provide evidence in court; and few are exposed to the rigours of cross-examination. However, court experience is the most valuable preparation they can have, providing them with first-hand experience of a court case, and how their opinion will be regarded.

Not all experts can clearly articulate the required information verbally. All experts become nervous if called to give evidence. Not only do they have to be able to provide clear and concise findings, opinions and recommendations in written form, but they also have to be able to remain calm when providing evidence verbally in a courtroom.

Some experts wrongly believe that their role is to ‘win the case’ and/or make comment on liability. This fundamental misunderstanding makes it essential for all those who are called to give evidence to have the opportunity to meet the solicitor and/or counsel first.

Pre-court briefings are successful when they provide the opportunity:

• for the expert to gain some understanding of the legal dynamics of the case;

• for the expert to be informed of the sequence of evidence called in a case and what the line of questioning will be;

• for counsel to have a closer examination of the expert’s CV to highlight their relevant experience/qualifications;

• for counsel to outline possible areas that might be subject to questioning by the other side;

• for the expert to be made aware that they will need to bring their report and file notes; and

• for the expert to highlight any errors (for example, typographical, or of fact) in the report and seek guidance on how to deal with these.

Ideally, these briefings should occur a day or so before the expert is due to give evidence. This gives them time to read their report thoroughly and be prepared for their day in court.

Such a briefing not only assists the expert in understanding court requirements, but also gives counsel the opportunity to glean further insights into the impact of catastrophic injury on the injured person and what this means for their participation in life.

CONCLUSION

Assessing catastrophically injured people, providing opinions and appearing in court are all exercises in communication between the solicitor and the expert; the expert and the injured person; the expert and counsel; and the expert and the court.

Engaging the right expert involves understanding how their CV translates into direct experience, and how that direct experience can translate into expert opinion.

To get the best from an expert, it is essential to understand the difference between a senior clinician and a forensic expert, and to work alongside a senior clinician to assist them in becoming an expert witness. The better a practitioner understands their expert’s experience, the better they will ultimately understand the nature of their client’s injury from a clinical perspective, and be able to use their expert’s insights to the benefit of their client’s case.

Michelle French is principal and co-director of Michelle French & Associates, a consultancy in Melbourne which trains and manages allied health professionals to be expert witnesses in medicolegal cases. She has worked in catastrophic injury in acute, post-acute and community settings for over 25 years, and has provided expert evidence in hundreds of cases for over 20 years. PHONE (03) 9489 5381 EMAIL michelle@michellefrench.com.au.

Amanda Cullen is medicolegal manager and a co-director of Michelle French & Associates in Melbourne. She works closely with consulting law firms and individual experts to develop consistent, thorough and quantified medicolegal reporting systems. PHONE (03) 9489 EMAIL amanda@michellefrench.com.au.


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