Doctors as Medical-Legal Experts

1. Doctors as Medical-Legal Experts

2. From the juror’s viewpoint • Why should I accept this person’s testimony?

3. How long did it take me to get an appointment How long did my doctor(s) actually spend talking with me about my (medical issue) How straightforward was my doctor with me about my diagnosis, a prognosis, or “a reasonable medical probability”? Will he be nice to you once you leave the (hospital, the clinic, the courthouse)? How many jurors were affected by a medical mistake? (Hint: More than you think….) Why did this doctor agree to testify$

4. From the Lawyer’s Point of View • Reachable • Be available to discuss the records • Provide and stick to dates for deposition and court appearances • A teacher • A witness who will take the time to explain the medicine and the anatomy in plain language • Knows the facts, including those the other side thinks important • Tell(me Doctor, why would a woman who had a tubal ligation use a diaphram?…… • No self-inflicted wounds

5. From the Judge’s Point of View • Rules of Evidence • Scientific, technical, or specialized knowledge • Qualified by knowledge, skill, experience, training, or education

6. Mrs. Black’s Fibromyalgia • I have examined Mrs. Black following her fall at Food Lion. • History: She had immediate lower back and arm pain, headache, dizziness. • MRI, EMG, and diskogram within normal limits • Diagnosis: fibromyalgia • Rule out other causes for fibromyalgia per accepted protocol

7. Methodology • History • No intervening cause by other incident • Objective tests

8. Opinion • Fibromyalgia, r/o other causes, secondary to trauma

9. Does Marcus Welby testify? • Daubert v Merrill Dow,509 US 579 (1993) at 592 • The Gates of Admissibility of an opinion • 1. May not contradict known facts • Methodology to reach opinion must be reliable • * Was the method used to reach the opinion tested • * Is it accepted in the Peer-Reviewed Literature • * Is there accounting for any error rate • * Is there scientific validity • * Did the witness reach the conclusion, then run tests to buttress the conclusion • * Did the witness account for other possible explanations

10. 3. Is the opinion solely based on experience (“I see people all the time with backs just like his and it wasn’t caused by lifting at that warehouse….”) • 4. Was there an adequate foundation for the conclusion? (“ I didn’t need a CT or MRI; I saw all I needed on plain films…”) • 5. Is the connection between the facts and the opinion reliable? (“Hard work never hurt anybody, and besides, he isn’t hurt ….”)

11. Did Black pass the judge’s test? • 1. Literature: insufficient evidence to connect fibromyalgia and trauma • 2. Insufficient epidemiology to know ‘exact causes of fibromalgia’ • 3. ‘Trauma as cause’ theory not accepted within the medical profession • 4. Differential diagnosis ruling out other likely causes is insufficient in the absence of a “specific train of medical evidence to Black’s development of fibromyalgia

12. Conclusion • The medical witness should be: • Someone who is willing to and has taken the steps necessary to form an opinion that would be acceptable if another doctor were expressing that opinion about your wife (or husband, or child). • Someone who seems to know what they are talking about • Someone who seems to want to be helpful to the judge or jury