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Common mistakes of medical experts

There are a number of pitfalls that medical experts can avoid to ensure they are providing unbiased reports in personal injury litigation, says Toronto orthopaedic spine and trauma surgeon Dr. Michael Ford.

“The role of a medical expert is pivotal because everything hinges on the medical evidence,” he tells AdvocateDaily.com.

“The courts depend on us heavily and we do have an important role to play. If we don’t do our job there’s going to be a significant unfairness and it’s going to hurt people. It could be unjust for plaintiffs, defendants, and insurers and it may be unfair to the insured public.”

Some medical experts — either overtly or subconsciously — feel they are somehow required to generate a favourable report for the payor, Ford says. 

“Advocacy may start to creep into their report, but they can’t do that nor should they do that,” he says. “Our role is to be completely objective and advocacy is not supposed to come into it at all.

“This is especially true for motor vehicle accidents where there is no objective evidence of any post-traumatic pathology. These are the cases that are invariably most contentious — those involving the low-velocity, hit-from-behind motor vehicle accident resulting in ‘whiplash.’”

Ford says some medical experts will say such a plaintiff has injuries because they have complaints but “the two aren’t synonymous." 

“Just because someone has complaints does not mean they’ve incurred an injury,” he says. “That’s probably the biggest mistake I’ve seen: when medical experts think they are synonymous when they’re not.

“Our job is to look at the potential for injury. But when someone has been hit from behind at three km/h, there is no potential for injury. We know that at such low speeds, people do not sustain injuries any more than you would incur a skull fracture if a feather lands on your head, even if you have a thin skull.”

And if a physician is finding this area difficult to navigate, they shouldn’t be a medical expert, Ford says. 

“If they can’t do it, they shouldn’t do it,” he says. 

Ford says he’s even seen some medical experts refer to plaintiffs as “forthright” but warns this is not appropriate.

“This is not an orthopaedic — or medical — determination,” he says. “I’ve seen physicians say the patient is being completely honest. But they have no way of determining that. No one does. Even with polygraph testing, we can’t be 100 per cent sure that an individual is telling the truth.”

Being 100 per cent objective is the most important aspect of acting as a medical expert, Ford says.  

But sometimes there is a lack of understanding about what has been published in the medical literature and that impacts a physician's ability to be objective, he says.

“Some experts are under the mistaken belief that if there are pre-existing degenerative changes in someone’s spine, for example, that renders them more vulnerable and more likely to incur significant injuries from a minor impact. That’s wrong,” he says. “The literature shows that’s not the case.”

Another common mistake is that experts go outside of their area of expertise, Ford notes.

“Some physicians opine on conditions that are obviously psychiatric or psychological when they don't practise psychiatry,” he says. “Claiming that someone has a chronic pain syndrome or a somatic disorder, which is a psychiatric label, is a huge error that I see time and time again.

“We are supposed to stay within our area of expertise.”

There is no checklist per se that physicians can use to ensure they are being objective and it  "isn’t something that can be formally imposed,” Ford says.

However, it is something every physician should consider before releasing any report, he adds.

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