Guidelines for attorney–physician interactions about brachial plexus palsy patients

CHAPTER 6 Guidelines for attorney–physician interactions about brachial plexus palsy patients



Edward C. Reynolds, Jr., JD, Richard C. Boothman, JD




Summary box



1 Establish all the terms and conditions of proposed expert witness work before agreeing to take on the case.

2 An expert witness should be an advocate only for his/her expertise as a physician and for the truth of his/her opinions.

3 Competent, experienced, and fair-minded physiatrists should be willing to act as expert witnesses for patients/plaintiffs as well as for physiatrists/defendants.

4 Require a HIPAA-compliant authorization for release of the patient’s medical information before discussing the patient with any attorney, even the attorney for the patient.

5 Always consider whether you should have your attorney present for any meeting with an attorney representing a party to a lawsuit or claim.

6 Don’t hesitate to charge attorneys who request your time and professional skills.

7 Know when you can say “No” to attorney requests for meetings and deposition proposals.

8 Know the difference between service as a fact witness and an expert opinion witness.

9 Prepare thoroughly and commit. Prepare thoroughly and insist on as much time with your own lawyer as you need to be and feel ready to testify.

10 Understand your rights and know the rules for witnesses.

11 Don’t hesitate to look to your attorney for advice and counsel for all contacts by attorneys seeking time with you.


Introduction


Current treatment of brachial plexus palsy (BPP) is often a multi-disciplinary team approach, bringing to bear the skills of physical medicine and rehabilitation, neurosurgery, orthopedic surgery, plastic surgery, occupational and physical therapies, social work, and psychology. BPP patients often have another kind of team focused on BPP: an attorney and his/her support staff, which may consist of assistant attorneys, legal assistants, nurses and rehabilitation specialists, and even physicians. To do his/her job properly, the patient’s attorney will require evidence from one or more members of the BPP treatment team; sometimes the same is true of the defense attorney on the other side of the case. Attorneys need the knowledge of the treaters to support their theories of the case. It is inevitable that attorneys will contact one or more members of the treatment team. This chapter is about the ways in which that contact can occur and what you, the BPP specialists can do or not do in response.


BPP issues may arise in many types of civil litigation: e.g., medical malpractice, social security disability claims, Americans With Disabilities Act and other employment claims, workers’ compensation, and divorce/child custody. Severity of the individual patient’s BPP is always an issue, because it is the focus of the question of how well your patient can function for the rest of his/her life. What is the impact of the injury on the patient’s ability to perform activities of normal daily living? Is the patient employable? If so, what kind of work can the patient do? What kinds of workplace accommodations or home modifications are reasonable and necessary for the level of severity of BPP? These questions lead to economic considerations, such as whether there is need for surgery; or continuing therapies, and for what period of time; costs of care and support; and loss of earning capacity.


The following are types of cases in which you, as a member of a BPP treatment team, may be particularly qualified to assess in a patient with brachial plexus palsy, to describe the anatomy of the injury, and to offer opinions about the extent of physical limitations or disability.



Medical malpractice


BPP is most frequently the subject of medical malpractice suits, in which the defining issues are the applicable standards of care (usually for obstetrics, maternal-fetal medicine, family medicine, and/or labor and delivery nursing), whether the care provider violated a standard of care, what injuries resulted, and whether there was a foreseeable causal connection between the standard of care violation and the injuries. The physician’s expertise in brachial plexus surgery may also involve him or her in issues regarding adult surgery, particularly lateral neck and shoulder operations, with regard to the same issues of causation and standards of care.



Workers’ compensation and social security disability claims


The focus for BPP specialists in disability and workers’ compensation claims is most often the degree of injury and resulting physical limitations. Can the patient work, and if so, to what extent? Workers’ compensation claims may also deal with the issue of whether the BPP is work-related.



Americans with Disabilities Act (ADA – 42 U.S.C. §§ 12101-12213)/employment


BPP specialists would not give evidence on the question of the appropriateness of the facility’s or employer’s handling of workplace issues, but the reasonableness of an employer’s accommodations to the condition is an important factor and one that is within the expertise of most BPP specialists. A BPP specialist may be asked to describe the severity of the BPP, the resulting physical limitations of the employee, and how the facility or work environment could be restructured to improve access to the facility or to allow the employee with BPP to function in the workplace.



Divorce and child custody disputes


A court may require a parent of a minor child of a marriage to pay child support for the welfare of the child. If the child suffers from BPP, the extent of the injury and resulting limitations may be relevant to the amount of child support, and/or medical costs, that are reasonably necessary for the welfare of the child. In some cases it may also be relevant for a child support obligation continuing beyond the age of majority, if the child is severely disabled.



Elements of civil claims and suits


The effects of BPP may vary greatly among patients who nevertheless demonstrate and share a number of characteristics particular to BPP. So it is with civil suits. An ADA suit alleging failure to provide accommodations mandated by the Act is very different from a medical malpractice case alleging improper management of a labor and delivery. Yet the two cases are remarkably similar when one examines the elements of the claims: certain acts were required or proscribed, the defendant failed to act properly, the claimant or plaintiff was injured, there is a causal connection between the injury and the act or failure to act, and there are damages that flowed from the inappropriate act or inaction. Every analogy breaks down; this one is no exception. Child support issues in divorce and child custody cases focus on the opposing views of how much child support should be paid to further the best interests of the child.


Because BPP issues arise more frequently in malpractice suits than any other type of civil action, the elements of a malpractice case are a useful paradigm and are the focus of the Chapter. To illustrate by positing a case against an obstetrician alleged to have caused BPP during delivery, the elements of the malpractice claim are:


1 What standard of care applied to the obstetrician’s management of the delivery? What would the ordinary obstetrician do or not do when giving reasonable care in the same or similar circumstances?

2 What was the breach, or violation, of the standard of care by the obstetrician? Was the care unreasonable, and if so, how?

3 What is the injury? E.g., How severe is the BPP? Will treatment improve function?

4 Is the injury the foreseeable consequence (the proximate cause) of the violation of the standard of care? Was it unreasonable care that produced the BPP, or is the injury the unavoidable consequence of a difficult presentation and delivery?

5 What are the costs and damages that flow from the BPP?

As we look at the ways you may be involved in claims and suits, bear in mind this elemental outline.



The stages of a lawsuit


Every malpractice case has three stages: investigation before filing suit; pre-trial discovery after filing suit; and resolution by negotiation and settlement, summary or voluntary dismissal, or trial. “Trial” in this context means any contested hearing of evidence that leads to a decision on liability and an award of money damages, such as in a trial in a courtroom, in an arbitration hearing, or in an administrative proceeding. Administrative proceedings may include an investigation stage, investigation review, and hearing before a disciplinary board – all before a final hearing or trial on the merits. At the end of the first stage, there may be a claims process intended to circumvent the second stage and resolve the case.



Pre-suit investigation


During the pre-suit investigation stage, the BPP patient’s attorney will assess the causation and injury elements of the case by collecting and reviewing relevant documents, including health care and school records. We will not discuss the elements of standard of care, taking the position that members of the typical BPP treatment team (PM&R, neurosurgery, orthopedic surgery, et al.) are not technically qualified to address questions of appropriate obstetrical care. The attorney should attempt to identify and interview care providers who have knowledge about any subject the attorney believes is relevant to an issue in the potential suit.


Experienced attorneys know that not every potential case lives up to its promise, no matter how severe the injury, or how sympathetic the patient, or how badly the care may have been mismanaged. To avoid costly surprises, experienced malpractice attorneys investigate and prepare their cases in depth and in detail before filing suit.


The attorney’s interest will quickly turn to the BPP team caring for the patient. Litigation is a high-cost enterprise for the patient and his/her attorney. A careful patient’s attorney will look to the treatment team for expertise to help the attorney assess whether to pursue a claim or lawsuit. The patient’s attorney who is thorough will often try to consult treating physicians or therapists for some or all of the following:


• interpretation of medical records;

• explanation of the anatomy of the BPP injury;

• explanation of the mechanism of injury;

• what effective treatment/therapies the patient should receive;

• what treatment/therapies will likely continue and for how long;

• the extent to which the patient is disabled, if at all – present and future.

A patient’s attorney may also consult one or more BPP specialists who do not treat the attorney’s client. The consultant is often one who is willing to take on the role of an expert opinion witness to support the patient’s claim or case. During the pre-suit stage, the attorney’s consultant will review all relevant documents, and may suggest studies, testing, and physical examination of the patient. The attorney will rely on the consultant’s analyses – both positive and negative aspects – as part of his/her determination of the strength of the case as the case work up goes forward.


When the attorney is satisfied that he/she can prove the elements of the case, there are two options: file the lawsuit and move to the second stage of the case, or approach the potential defendant physician and any others who will be sued and initiate early negotiation of the claim. This will mean that the patient’s attorney will allow the other side time to investigate the claim from the defense side. If the case is strong and well prepared, waiting for the defense to catch up is time well spent and money saved. This “up-front” approach can produce an early and fair resolution in which the settlement amount is reasonable, both sides avoid the risks and costs of litigation, and there is certainty of outcome for both sides.


In some states, procedural law may require a potential plaintiff to give pre-suit notice to potential defendants of intent to file suit. There is then a waiting period before suit can be filed, giving the defense an opportunity to do pre-suit investigation as well.



Pre-trial discovery and potential pre-trial resolution


The second stage is the period when you are most likely to have contact with the attorneys in the case. The likely contacts are (1) requests for ex parte, or private one-on-one meetings; (2) requests or subpoenas for deposition.


Once the patient’s attorney files suit and an attorney for the defendant joins the case, the objective for both sides in the pre-trial discovery stage is to search for evidence to use at trial to prove the patient’s theories of the case, or to support the defense theories of why the case is without merit. The most common form of discovery is the deposition – the taking of sworn testimony, giving all of the attorneys in the case the opportunity to question the witness. As the discovery process continues, each side begins to identify witnesses who will help or hurt that side’s theories. In short, each attorney evaluates each witness’s potential: Does this witness help the case, undermine the case, or have no effect on the case at all?



Resolution


If the parties cannot resolve the suit before trial, they move to the final step. A trial or hearing is the presentation of competing evidence to a finder of fact (jury, judge, magistrate, or hearing officer) who decides the case based on the evidence presented during the trial or hearing.



The roles of the non-party BPP specialist in litigation


The plaintiff and defendant in a lawsuit are generically referred to as “parties.” In a BPP case, an attorney may retain a specialist with experience in evaluating and treating BPP to educate the attorney about BPP, to review and explain the BPP patient’s records, to examine the patient, and to testify about the extent of the BPP disability and resultant needs for therapy and other support. As a non-party physician you may play one or both of two important roles: (1) you may testify as a treating physician about facts relevant to the BPP issues. You may testify about examination findings during the regular course of treatment. (2) On the other hand, you may testify about your opinions on causation and/or damages, based on records, transcripts of testimony, and other evidence submitted for review during discovery. The first is commonly known as a fact witness; the second functions as an expert opinion witness.



The fact witness


As a specialist who treated or is treating the patient you are a witness with knowledge of facts that are relevant to one or more issues in the case. You have information about the patient’s BPP: patient history; examination findings; results of testing and consultation and/or care by other providers, such as physical or occupational therapy; assessment and diagnosis; current prognosis. This factual knowledge may give rise to questions such as: What were your physical examination findings? How and when did you diagnose BPP? What conclusions have you reached about permanency of the injury? Has physical or occupational therapy produced any functional improvement? Have you recommended any further therapy or surgery? What are the functional limitations of the affected arm? How will the BPP affect the patient’s recreational activities, the patient’s ability to learn, and the performance of routine daily activities of personal care? Is there any evidence of emotional effects of the disability?



The expert witness


An expert opinion witness is a witness who has “specialized scientific, technical, or other specialized knowledge that will assist the trier of fact [the judge or jury] to understand the evidence or to determine a fact in issue … .” (Federal Rule of Evidence 702 – most States have adopted a version of this rule).


Note that some of the questions for the fact witness fall within this definition. So even when testifying as a fact witness, you are acting and assisting the finder of fact as an expert; that expertise is limited, however, only to conclusions and opinions reached as a part of your care of the patient.


Many physicians are reluctant to do “expert witnessing.” In our opinion this reluctance is unfortunate and misguided. Many malpractice suits could be avoided if well-qualified, practicing, objective BPP specialists agreed to review cases for patients’ attorneys and carefully explained to the attorneys why their claims or theories are unfounded. Likewise, careful objective physicians who fairly find clear deviations from the standard of care give credibility to a claim and often aid in pre-suit or early pre-trial resolution of the claim in a manner that is fair to all sides. This avoids dragging the defendant physician through a very long and very unpleasant process that would likely result in settlement anyway, but at a cost to the physician of more than just insurance dollars. If a BPP specialist agrees to act as an expert witness, then we recommend that the specialist be willing to review cases for both sides.


The usual understanding of the role of expert opinion witness in a BPP case is the specialist who testifies most often about the extent of the BPP and how it will affect the patient over the long term. There may be cases in which you where will testify about the mechanics of the injury that led to BPP. And in rare cases, a specialist may feel qualified to testify about the reasonableness of the care during labor and delivery. The opposing party would aggressively object to a non-obstetrician giving opinion testimony about obstetrical standards of care. The trial judge would examine the arguments for and against the qualifications of the BPP expert to give testimony against the obstetrician and would then rule that the offered expert testimony was admitted, or not, as part of the evidence on which the fact finder might base a decision.



Assessment of the BPP patient


A melding of the roles of fact and opinion witness occurs when a BPP examiner evaluates a BPP patient at the request of you one or more parties, or, rarely, of the trial judge. This examination is often called an independent medical examination or IME. One may scoff at the adjective “independent” because the examiner is usually the choice of the defense attorney; however, you are independent in the sense that you have no history of treating the patient. An examiner makes a written report to both sides. If the examiner is not a “defense hack,” but a specialist with deep experience with BPP who is known for objectivity, fairness, and competence, a thorough and thoughtful IME can be the first step toward pre-trial resolution of the case.


The careful IME evaluator who is chosen by a defense attorney should take great care during both the patient evaluation and the preparation of a report to the attorney. If the case proceeds to litigation, it is certain that you will face a deposition replete with vigorous cross-examination by the patient’s attorney. It is likely too that the patient’s attorney will have had the patient examined by his expert before the deposition of the IME examiner. It is critical, therefore, that any specialist who performs a patient evaluation at the request of either party take great care to do a thorough evaluation, but only after you are certain that the attorney has given you, ahead of time, all records and other documents and information that have any bearing on the patient and the coming evaluation. Take care to retain all materials supplied by the attorney who hired you, as well as all records and notes made during review of case materials, and during the examination itself. Opposing counsel will require that copies of all materials reviewed and/or created by you for the examination are given to the opposing attorney for inspection during preparation for the examining specialist’s deposition. A defense examiner, for example, should assume that the examiner for the other side has carefully read all of the materials submitted by defense counsel before the IME. With all of this in mind, one cannot overstate the obvious goals for any examining BPP specialist: careful, complete, and thoughtful preparation for the examination, application of those principles of preparation to the examination itself, as well as to the preparation of any report that the attorney requests.


The attorney on either side who requests the IME may ask to attend the examination, or to send an associate attorney or paralegal. In the case of an infant, toddler, or younger child, a parent may ask to be present; this is a request you should assess on a clinical basis, considering the comfort of the patient and how if at all that might enable or prevent a thorough and accurate examination. The attorneys may ask to videotape the examination. You should carefully consider the environment of the examination room, the ability to film surreptitiously, and the question of patient distraction and the risks of unintentionally undermining the quality of the examination results.


Regardless of which party’s attorney requests an IME, your role is to perform an objective evaluation that favors neither side. You are not an advocate for any party; advocacy is the attorneys’ task. If you are an advocate, he/she advocate only for the thoroughness and accuracy of your assessment and about conclusions about the patient.


If you performed an IME at the request of the defense, you should expect that the opposing attorney will cross-examine you about social and professional relationships with the defendant’s attorney. This cross-examination usually includes a question-seeking certification by the witness of the competence, experience, and skill of the specialists or experts on the opposing side – “Is it true, then, that Dr Smith’s qualifications are at least equal to yours? Wouldn’t you agree, then, that we should consider Dr Smith’s opinions to be as accurate as yours?”


Regardless of the role that, or the entire treatment team, plays in a lawsuit, that involvement almost always begins with contact by a lawyer in the case.

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Related posts:

  1. The role of electrodiagnosis in infants with brachial plexus palsies
  2. Shoulder sequelae in children with brachial plexus palsy
  3. Nerve repair/nerve transfer strategies for adult brachial plexus palsies
  4. Clinical examination of the patient with brachial plexus palsy

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Jul 11, 2016 | Posted by in PEDIATRICS | Comments Off on Guidelines for attorney–physician interactions about brachial plexus palsy patients

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