BRAIN POWER: EMPOWERING HEALTHCARE SPECIALISTS Nigel G. Gilby, Partner, Lerners LLP London, OntarioDuring the course of your career as a health care specialist you are likely to participate in legaldisputes in a variety of professional roles. For most, the court system is alien and the rules ofthe legal game unknown. In many cases, the objectives of the court, the lawyers, and theparties to the dispute are at odds with the objectives of the health care profession. In the legalprocess, as a healthcare specialist, you are likely to be asked for your opinion with a degree ofcertainty not available in science and for predictions impossible to give without the benefit offoresight. This can be an uncomfortable situation for the healthcare specialist, when taken out ofyour own element and asked impossible questions.Judges and juries rely on expert witnesses to assist and guide them to a proper verdict in injurycases. The role of the expert witness is crucial to the administration of justice. An average jurorpulled in off the street, or even an average judge, cannot be expected to understand thecomplexities of medical science. How is the trier of fact to determine the seriousness of aninjury or the effect it will have on a persons life? Only with the assistance, guidance andeducation of a qualified and properly prepared health care professional can the civil litigationsystem hope to achieve balanced, fair and well founded results.In the context of acquired brain injury cases, the role of the healthcare specialist as a witness iscrucial. An average juror can understand the effect of a broken leg and with very little effort canapply his or her own life experiences to a case involving such a common injury. A brain injury,however, is a great deal more complicated than a broken leg. The ordinary man or woman onthe street cannot be expected to have encountered such a thing in life. Everyone can see an x-ray of a broken leg and identify the problem. Everyone does not know the effects of an acquiredbrain injury, as the effects are not always obvious or evident.Because of the position of the healthcare specialist in acquired brain injury cases, you will veryoften be called as a witness by the plaintiff, in cases that do proceed to trial, to give evidenceabout the nature and effect of the injury, and the personal observations you have made as theindividual’s treating healthcare specialist. Each member of the injured person’s medical andrehabilitation team has the ability to comment on the portion of the rehabilitation plan he or shehas been involved in, as well as the interaction of other team members, the effectiveness oftreatment and rehabilitation, and any problems associated with the rehabilitation of the injuredclient.The purpose of this paper is to offer some assistance, based mostly on experience, tohealthcare specialists called upon to assist in ABI cases. We offer an outline of the various waysin which each healthcare specialist may find him or herself involved in a court case, as well as adiscussion on how to make that experience not only less onerous but perhaps even positive.My comments are meant to be practical, broad guidelines focused more on strategy andtechnique rather than substantive law.The Role of the Healthcare Specialist in Personal Injury LitigationA healthcare specialist (psychologist, occupational therapist, physiotherapist, social worker,rehabilitation specialist, speech and language therapist, massage therapist, etc.) may become
-2-involved in litigation in two primary fashions when involved with individuals who have sustaineda brain injury. The first of these would involve the situation in which some other person or entitymay be at fault, or partially at fault, for the individual’s injuries in which case the injured personwould be making a claim for personal injuries by way of what is known as tort law. This isessentially where one person sues another person or entity claiming negligence on the part ofthat individual or entity for having caused or contributed to his or her injuries and damages. Theinjured person, known as the plaintiff, basically seeks financial compensation from the at-faultindividual or entity, known as the defendant or defendants, for his or her injuries.The second manner in which a healthcare specialist may become involved in the litigationprocess is in a situation involving a motor vehicle accident claim where the individual isreceiving no-fault benefits if applicable in their jurisdiction. In that case, a dispute may arisebetween the insured individual and his or her own insurance company concerning variousissues of coverage and entitlement. These disputes can lead to either, an arbitration, where thehealthcare specialist may be called to give evidence, or to litigation, where the healthcarespecialist again may be called to give evidence. Many claims now involve both the tort and no-fault insurers.The plaintiff in a tort claim will generally be suing for pain and suffering, income loss (both pastand future), out-of-pocket expenses, and future medical and rehabilitation expenses, and futurehousekeeping and home maintenance needs (often referred to as future care costs).The defendant(s) in these types of claims often take the position that the plaintiff’s damages arenot as serious as alleged, and that the plaintiff’s problems are often related to a pre-existingcondition not related to the incident giving rise to the injury in the particular case involving thedefendant. The issue of credibility is often key in these claims. The healthcare specialist canoften offer valuable insight with respect to the plaintiff’s efforts at rehabilitation.Clinical Notes and RecordsIf called to give evidence in any of these situations, the healthcare specialist will be asked toproduce clinical notes and records to all parties in the lawsuit or arbitration. It is criticaltherefore that these notes be thorough and consistent with your written reports. Not to mentionthat if you fail to keep proper records, as required by your governing Colleges, then disciplinaryaction can be taken against you, in Canada. There are recent decisions involving massagetherapists and occupational therapists in which disciplinary action was taken by the respectiveColleges in situations where the treatment provider either failed to keep accurate, completenotes and records, or falsified such records. The Colleges have advised that this type ofbehaviour will not be tolerated. In a litigation situation, the lack of accurate, complete recordkeeping can have a devastating effect on an injured person’s claim for compensation.Your complete notes and records are generally relevant as they outline the plaintiffs injuries,treatment, medical history, and course of rehabilitation. At various times throughout in thelitigation process, the healthcare specialist will usually prepare written reports, which aresupplied to the injured person, and in the case of motor vehicle accidents, to his or herinsurance company. These reports are also produceable to the insurance lawyer for the tortdefendant (insurance company).In any case where litigation is possible, there are a few things to bear in mind as a healthcarespecialist. First and foremost, in Ontario, there are restrictions on the disclosure of medicalrecords and information usually. In Canada, the basic rule is that your notes and recordscannot be disclosed without your patients consent, or an order from a court of competentjurisdiction. It is important to be sure that you are satisfied that the consent requirements have
-3-been met before you provide anyone with copies of your clinical notes and records. Note: thereare often special requirements when dealing with minors or someone with a lack of capacity dueto, for example, an acquired brain injury. If in doubt, consult your professional association forguidance, or contact a local lawyer familiar with personal injury law.It is also worth keeping in mind that, from the initial consultation with an injured person, yournotes may someday be considered key evidence in an important case. Be neat. It is of noassistance to the court if no one can read the notes that describe a patients progress andcondition. Be precise. The smallest slip of the pen may provide ammunition for one party toattack your skills, your degree of precision, even your credibility. Be careful. Never putanything down that you would not want your client, his or her family, the lawyers and possibly ajudge and jury to see. A good rule of thumb is to never write anything down that you would notwant to see on the front page of your local newspaper. Keep personal comments out of yourclinical notes and records.ReportsIn many instances you will be preparing reports on a regular basis, updating the injured person,usually his or her lawyer, and/or the injured person’s insurance company, with the individual’sprogress throughout the rehabilitation process.In certain circumstances, you may be asked specifically to prepare an expert report for theinjured person’s lawyer, providing your professional opinion on your patient’s treatment,rehabilitation, diagnosis and/or prognosis. When a report is requested from you, whether it befrom the injured person, his or her counsel, or counsel for the, there are some basic points tokeep in mind:• Fully describe your qualifications, and provide the lawyer with a copy of your current curriculum vitae.• Make sure you understand exactly what it is that you are being asked to comment on.• Do not to overstep the boundaries of your expertise. If you have concerns that go beyond your specialty, raise them as concerns but leave it to counsel to get the opinion from the appropriate expert.• Be as thorough as possible in your report.• To the best of your ability, keep your report medically precise but understandable to those without a medical education or background. Remember your audience.• Avoid being an advocate for your client. The opposing lawyers will act as advocates and you will be expected by the court to maintain professional distance from the issues at hand.• Insist on being properly and fairly compensated for your efforts. For most, the time spent preparing reports takes away from time with clients, but if done during non-client time, also from family and friends. You would be doing a disservice to your client and to the administration of justice by doing a slip-shod job in a hurry.
-4-The following information should be included:• The clients name and date of birth.• Dates and time spent with the client.• History related by the patient (or by family members where the patient cannot relay that information themselves either due to age or extent of injury), including the patients version of what caused the problem and a complete list of injuries complained of.• Your own observations and the comments with respect to each complaint.• Recommended treatment and overview of the treatment undertaken and results to date.• Degree of disability.• Effect of disability on function.• Prognosis as to future recovery, nature of the permanent impairment, the estimated time for rehabilitation and the long term consequences and effect of the injury or injuries.The Conflict between the Healthcare Specialist and Legal Worlds Regarding OpinionThe last point in the list set out above is the one that is most difficult for the healthcare specialistto provide: prognosis. It is difficult to predict the course of recovery. It is the role of thehealthcare specialist to consider the injury and to attempt to maximize the rehabilitation effort byinvoking various forms of treatment to minimize the effects of the injury and resulting disability.The focus is quite often on the present, not necessarily the future. While future recovery is anobvious concern for healthcare specialists, they are not primarily focused on making predictionsabout whether someone will work in five years, or whether he or she will need attendant careten years down the road. It is the role of the healthcare specialist to manage the individual’songoing and current disability and rehabilitation treatment plan.It is the goal of the clients lawyer to maximize recovery to allow the client to access treatment,and to compensate for financial losses and pain and suffering. It is the lawyers job to bepessimistic. To best represent the client, the lawyer must take a cautious and guarded view ofthe clients future. It does the client no good if the lawyer assumes that a recovery will be made,only to learn that it does not happen and the client does not have the funds needed to maintainthe proper level of care.It is the opposing lawyers goal to minimize the problem. The better the clients recovery, theless his or her client will have to pay in damages.It is the role of the court to determine whether an injury is compensable and whether it is morelikely than not that the damages have or will be incurred. The court attempts to find the properbalance and to award compensation for damages already incurred, and those that will morelikely than not be incurred in the future.Everyone involved is working at cross-purposes and you, as the healthcare specialist, arecaught in the middle.To provide a grim opinion will assist the client in recovering damages and monetary losses, butmay also discourage him or her and hamper recovery from the injury. To give a report that is too
-5-optimistic may irreparably harm the clients future care and compensation. It can be challengingto balance all of these conflicting interests. When faced with such a challenge, it is necessary toremind yourself of the experts role: the expert is there to give assistance to the court, not todecide the case. With that cornerstone firmly in place, the healthcare specialist should be ableto provide an opinion that is sound, ethically beyond reproach, and of evidentiary value to thecourt.Giving Evidence in CourtBeing required to attend court and give evidence can be overwhelming, but there are somestrategies that may be used to make the experience as painless as possible.If your clients counsel requires your testimony, insist on being properly prepared for court. It isnot enough that you are provided with a summons and told what time to show up at thecourthouse. You should be afforded the opportunity to meet with counsel, review your notes,find out what you are likely to be asked, and to discuss the mechanics of presenting evidence.As a rule, you should be shown how an exhibit (a document or piece of physical evidence) isentered, how an expert is qualified to give opinion evidence and the difference between directand cross-examination. As a rule of thumb, the level of experience you have with the courtsystem will dictate the amount of time that you should expect the lawyer to spend with you inpreparing you to give evidence. Obviously the complexities of the case and nature of thedispute will also play a significant role in that determination. You are also entitled to insist onfair compensation for your preparation time and attendance.In the event that your clients opponent serves you with a summons (a rare but possibleoccurrence) you are under no obligation to do anything more than show up at the appointedtime and place with your records. Without your clients consent, or order of the court, you arenot permitted to communicate with opposing counsel about your testimony. This leaves you inthe difficult position of being ill prepared for court but again, such occurrences are rare.While giving evidence as a healthcare specialist, it is important to avoid overt advocacy in anadversarial system of justice. Leave the lawyering to the lawyers. A treating expert is bound tohave a natural affiliation to the client as a result of the ongoing client/healthcare specialistrelationship. It is natural and understandable that the healthcare specialist will usually speak insupport of the client. However, it is essential that the perception of bias be avoided. Excessivebias will impair the credibility of your evidence and result in your evidence being given lessweight in the proceedings.In Canada and many other jurisdications, in most cases, an expert is asked to give his or herevidence in the form of oral testimony. The lawyer who called the witness asks questions andthe witness answers them. If done properly, this question and answer process will enable thewitness to tell a story that is logical, in sequence, effective, and persuasive. The lawyer whocalled the witness is generally not able to lead the witness to the answers he or she wants tohear. The questions have to be wide open and the witness must give original evidence, notsimply parrot or agree with what the lawyer has already said. The opposing lawyer will alsohave an opportunity to ask questions (cross-examine), and generally the opposition is notrestricted in the form of its questions. The opposing counsel can lead, or put things to thewitness, forcing the witness to agree or disagree with what has been said. This allows thelawyer to control the evidence and often leaves the witness feeling short-changed andmisunderstood.
-6-It is important to note that cross-examination is not, or should not be, a personal attack.However, a witness under cross-examination often feels that he or she is under personal attack.As a result, the witness often becomes defensive and can end up trying to support untenablepositions. The witness should be well prepared by counsel to face cross-examination by theother party and should be careful not to appear defensive when providing responses. While itmay appear counterintuitive to agree with some of the questions posed by opposing counsel, inreality, you will protect your credibility with careful consideration of the question and by giving afair answer.The expert witness can expect to receive questions about whether he or she would change hisor her opinion on alternative facts. For example, "Would your opinion change if I presented youwith evidence that establishes that the plaintiff had a significant learning disability prior to hercar accident?" While the automatic response may be to disagree with the other side, thewitness may appear more credible by agreeing that a change in the facts could change his orher opinion. You may also query whether this new evidence exists in fact.As indicated previously, the healthcare specialist’s evidence can be critical in dealing with thistype of litigation. The healthcare specialist is in a unique position to observe the treatment andrehabilitation process firsthand, to observe the injured person’s involvement in the rehabilitationprocess, including his or her cooperation, and efforts and the results of same, as well asinteracting with, and seeing the treatment undertaken by various other members of therehabilitation team. As such, you are witnesses who are valued by the courts and if properlypresented, you evidence is often critical to the determination of the case. Generally speaking, ajudge and/or jury only have a matter of hours or sometimes a day or two to observe the injuredperson while in the witness box giving evidence. Whereas, the treating healthcare specialisthas often had a large number of hours, sometimes hundreds of hours over months and years, toobserve the injured person and can outline weeks, months and even years of observations.Therefore, as a witness, the healthcare specialist can be assured that his or her opinion will begiven weight and his or her contribution to the outcome of the case will be significant if theevidence is put in properly and fairly. As you are aware, with many injuries people have gooddays and bad days. The healthcare specialist usually see this and can assist the judge and/orjury by putting things certain things into perspective like surveillance, which shows the injuredperson being active, versus medical reports that say the individual cannot function well.Demonstrative EvidenceThe primary method of entering evidence is by the spoken word, through examination andcross-examination of the witness. However, there is great value in demonstrative evidence aswell, and the topic is well worth comment here.Demonstrative evidence is that which can be seen, be it a picture, a medical illustration, a videotape, or a model. It can be of tremendous assistance to the witness, judge and jury to be able topoint at an illustration of what is being described in the testimony. It becomes real. For example,a verbal description of a surgical procedure, such as the insertion of a shunt, could take hoursand would still leave a jury lacking a true sense of the complicated procedure. Showing a videotape of the procedure in question makes the verbal description come to life. The judge and jurycan actually see what took place. This type of evidence always has a greater impact than eventhe most articulate verbal description.It is for that reason that in many cases I will insist upon photographs and video tapes to betaken during various phases of the rehabilitation process showing the person’s efforts in his orher rehabilitation, ongoing limitations, and the nature and type of the treatment itself. A
-7-healthcare specialist who is witness to all of these things can describe what is seen in thephotographs, and on the video tape, and then comment on its accuracy and provide his or herown personal observations to support the demonstrative evidence.Demonstrative evidence, in my opinion, is an invaluable tool to aid the healthcare specialist ingiving their evidence to explain exactly what it is that has been done to treat and/or rehabilitatethe plaintiff.The Role of the Hired Expert in CourtGenerally speaking, an expert witness is someone who has acquired special knowledge, byobservation or study of scientific works, of the subject matter on which he or she testifies. Dueto the experts special knowledge, he or she is permitted to give an opinion to the court. Anordinary person, or lay witness, is usually not permitted to give an opinion in court. A pedestrianwho witnesses an accident cannot testify, "In my opinion, the driver of the blue car wasreckless." The witness can only describe what she or he saw, heard, or otherwise has directknowledge of. For example: "The blue car came through the intersection very quickly, withoutstopping for the stop sign, and hit the lady in the red car in a tremendous crash." It is up to thejudge and jury to decide if that constitutes recklessness. An expert can go beyond and give hisor her opinion.Along with providing expert evidence, the treating healthcare specialist can be called upon togive evidence of actual observations and events. "I examined Mr. Smith on the following datesand here is what I saw." Naturally, some opinion evidence will seep into the testimony, but theprimary purpose for the treating healthcare specialist’s testimony is to describe events he or shepersonally observed.A hired expert witness often has no prior knowledge of, or relationship with, the patient inquestion, and is consulted solely for the purposes of giving a medical opinion to the court. "Iexamined Mr. Smith at the request of his lawyer, and upon review of all of the records and inlight of my examination of Mr. Smith I conclude that, as a result of his injuries, he will neverreturn to gainful employment."Such evidence is powerful and to some extent it usurps the role of the court. Suddenly, anexpert hired and paid for by one party is telling the judge how he or she should decide the case.For this reason the courts have tried to limit who is an expert and what they can give expertopinion on. The court must first recognize the person as an expert. This gives further credibilityto the person testifying as an expert and the evidence he or she gives, especially in the eyes ofthe jury.Few phenomena are more common in contemporary litigation than the calling of expertevidence. It is increasingly rare to find any litigation of consequence in which one side, and mostoften both sides, do not propose to lead such evidence.As issues get more and more complex, as medicine becomes increasingly complicated, and asthe science behind the art of diagnosis, treatment and rehabilitation becomes increasinglyintense, the role of the expert increases in our courts. Judges and juries cling to the expertsevidence because they have no other way of digesting the information presented to them.In Canada and in any other commonwealth jurisdiction before any opinion is presented asevidence, the qualifications of the expert must be examined and the relevance and necessity ofsuch evidence must be established. In R. v. Mohan,  2002 S.C.R. 9, Mr. Justice Sopinka,
-8-writing for the Supreme Court of Canada, crafted a four-part test for the admission of expertopinion evidence in Canada.1. Relevance. The expert evidence must be logically probative of a fact in issue.2. Necessity. The evidence must be necessary to help the court understand something that is likely to be outside the scope of knowledge of a judge or jury.3. The absence of an exclusionary rule.4. A properly qualified expert.If these four qualifications are met, the evidence of the expert is likely to be admitted andconsiderable deference will be given to the expert in the decision making process. Therefore,the selection of the appropriate expert witness, the preparation of an experts report, and thewitness ability to testify in a clear and credible manner are of critical importance. It has beensaid that the powers of the experts presentation and the impression he or she makes in thewitness box are crucially important and may well overshadow the mere logic of the opinion itself.For this reason, no matter how well qualified the expert witness may be, there is no substitutefor adequate legal preparation.Preparation and Presentation of the Healthcare Specialist as an Expert WitnessThere are five stages to the experts testimony:1. The introduction stage: where the court is advised of the witness name, profession and status as a proposed expert on certain areas.2. The qualification stage: where the witness will be taken through his or her curriculum vitae to outline his or her education, credentials, publications, training and experience. The opposing lawyer will have an opportunity at this stage to challenge the expertise of the witness and to object to opinion evidence. The court will then make a ruling on the extent to which opinion evidence can be given by the particular witness.3. Direct examination: where the lawyer who called the witness asks broad questions that enable the witness to give his or her opinions and the bases for them.4. Cross-examination: where the opposing lawyer attempts to undermine the evidence given or attack the conclusions reached by the expert.5. Re-examination: where the first lawyer can address anything that was raised for the first time during cross-examination.The expert healthcare specialist can expect to be aggressively cross-examined on a number ofareas, including:• False or overstated credentials;• Evidence of bias;• Incomplete investigation;• Absence of actual premises for the expressed opinion;
-9-• False factual premises for the opinion;• Absence of conclusive opinions;• Superior qualifications of opposing experts;• Agreement on key facts or concepts that support the cross-examiners case;• Accepted textual reference materials that conflict with the experts opinion.As an example, cross-examining a healthcare specialist in a case involving a mild or moderateacquired brain injury can be particularly fruitful for a talented lawyer because there are so manyconflicting opinions in the medical arena with respect to cause, treatment, rehabilitation andeffect. An effective expert must be prepared to stand behind his or her opinion in the face of anattack. Proper preparation by the lawyer calling the expert, including a dry run or so-called“dress rehearsal” of a cross-examination, is the best way to withstand such an attack. Again, anexperienced personal injury trial lawyer will spend time with the healthcare specialist preparinghim or her to give evidence not only when being questioned by that lawyer, but will also attackany areas of weakness in the healthcare specialist’s answers to the lawyer during the dry run.ConclusionAs a treating healthcare specialist and expert witness, you can expect to play a key role in theadministration of justice for your patient. You play important roles in lawsuits, even those thatdo not go to trial. However, in cases that may go to trial or to arbitration, the key to playing therole successfully to the benefit of the patient, the parties, and the courts, is in preparation.Most healthcare specialists are not entirely enthusiastic about preparing for his or her role incourt. If you were, you would have become lawyers. Nevertheless, understanding your crucialimportance and the effect that you have on their patients lives, it has been our experience thatyou accept the mantle of your responsibility with grace, seriousness and dedication.Nigel G. GilbyLerners LLP519.email@example.com Prepared by LERNERS LLP This is not intended to be relied on as legal advice Please contact Nigel G. Gilby for further information 519.672.4510 Copyright March 2010 Lerners Not to be reproduced without permission of Lerners LLP