Physician Role: Patient Advocate Versus Advocate/Agent of Court

As health care providers, we find ourselves in the role of patient advocate for several different causes, and we are taught that this is our role as clinicians. We advocate for their best interests in relieving their suffering and preventing further harm to their health. We advocate for our patients to get insurance approval for appropriate health care, and we advocate for their disability application when appropriate. These are all ethical and, indeed, laudable positions in which to find ourselves. However, when we are in the role of expert witness, we are no longer in the role of patient advocate. When we take on the position of medical expert, we are, in essence, enjoined as agents of the court, and it is our duty to provide a truthful and objective assessment of an individual’s physical condition. To advocate for our patients in this situation would be unethical. This is important to keep in mind as the patient’s best interests may not be aligned with the best interests of the court and society as a whole.

Payment

Although many physicians are uncomfortable discussing fees, it is important to be transparent regarding fees when dealing with any case involving litigation. You should have a signed contract with the attorney who has hired you before seeing the patient. This contract should detail all of your fees, including office visits, testing, record review, reports, phone conferences, depositions, and trial appearances ( Fig. 7.1 ). Because the time, effort, and intellectual energy expended in these cases are considerably more than in routine patients, you should not accept discounted Medicare or insurance rates for the clinical components in the evaluation of these patients. You should also be paid in advance for all of your services and never accept a case with a contingency fee. Accepting a contingency fee for a case compromises your impartiality and your credibility and is unethical. Although depositions can be scheduled at your convenience, trial appearances cannot. These appearances typically will absorb most, if not all, of your working day and if there is any significant travel involved, more than a day. There will be more trial appearances scheduled than actually occur, because so many cases settle at the last minute. Because it is hard to reschedule a clinical day at the last minute, payment in advance and a cancellation fee are reasonable approaches for such occurrences.

Sample financial policy contract.

Extensive Documentation of History and Physical Examination

Extensive documentation of the history and physical examination is an important first step in the evaluation of patients who are involved in litigation. We use a comprehensive previsit questionnaire to document the patient’s responses in their own handwriting. This questionnaire is filled out in our office waiting room, and then signed by the patient, dated, and witnessed by one of our staff members. This is important to document because so much of our medical opinions and diagnoses are based on information garnered from the history. This may seem elaborate, but there will be times when the patient will later deny statements made in the office. Without documentation to the contrary, the expert will either be forced to change their opinion on this “new” historical information or be caught in a “my word against his word” confrontation. Of course, if the above documentation occurs, any future changes in the history are problematic for the patient and compromise his/her reliability. Any historical information provided by the patient (or the attorney) must be corroborated by medical records, physical findings, objective testing, and the like. Memory is often swayed by potential million dollar settlements. At the same time our intake questionnaire is completed, we have the patient sign a consent form for evaluation and a complete test battery (including audiometric tests, calorics, rotary chair tests, posturography, etc.), which also includes consent for photo or video documentation. In addition, we have the attorney sign an agreement itemizing our fees for office visits, testing, record review, depositions, and court appearances. If these are not signed, we do not see the patient. Furthermore, the agreement stipulates how a no-show or last minute cancellation will be handled—for both office visits and deposition/trial appearances. Likewise, we request all existing medical records.

Extensive Objective Testing to Verify Complaints

Do not be cost-conscious. In this day of escalating health care costs, many physicians have been made ever so aware of ordering unnecessary tests. However, in the context of litigation, the concern of being cost-conscious is misplaced. A complete and thorough evaluation including history, physical examination, audiologic tests, vestibular tests, imaging, and any other ancillary tests you may need is unlikely to exceed $10,000. Any (nonnuisance) litigation concerning dizziness is almost certainly seeking redress exceeding several hundred thousand dollars, and frequently exceeding a million dollars. Consequently, the costs of the evaluation by the medical expert in these cases are almost always negligible in comparison. If an attorney is reticent to proceed with a full evaluation because of the costs, this is a good clue that they do not have a case and are hoping to settle for a nuisance fee.

Corroboration of Objective and Subjective Findings

Because litigation involving the complaint of dizziness often involves the possibility of very large monetary awards, there is significant incentive for plaintiffs to malinger, or to significantly exaggerate their symptoms. Lawyers, judges, and juries are also aware of these factors—sometimes more so than physicians. Consequently, it is imperative that any subjective complaints are objectively verified and quantified as best as possible. This process will often either bolster the plaintiff’s case or destroy it. However, sometimes the result is a mixture of these outcomes—helping some aspects of the case while harming other aspects. To the expert witness, whatever the result, it should not matter.

Make Sure All Pieces Fit: Do Symptoms and Severity Correlate With Objective Findings?

Among dizzy patients who are undergoing litigation, approximately 25% will have symptoms that are corroborated by objective testing and 25% will have nonphysiologic test results with no objective findings to corroborate their subjective complaints ( Fig. 7.2 ). These two groups would appear to be fairly straightforward—one group that appears to be honest and legitimate and the other group highly suspicious for malingering. However, there is another, larger group of patients representing approximately 50% of this population who have characteristics of both—some verification of subjective symptoms by objective testing and some nonphysiologic results suggestive of exaggeration or malingering. Putting all three groups together, you could reasonably say that 75% of all patients complaining of dizziness and involved in litigation were either malingering or exaggerating their problems. Or, you could also reasonably state that 75% of these patients had legitimate pathology. In both statements, you would be correct. Separating the true pathology from the exaggeration is the main role of the expert witness.

Among dizzy patients involved in litigation, objective verification of symptoms is found in approximately 25%, nonphysiologic results suggestive of frank malingering in roughly 25%, and exaggeration of symptoms in about 50%.

Assessment of Causation

Once the evaluation of objective pathology has been performed, causation must be considered. The legal hurdle for most expert witness testimony is the determination of probability. Probability is defined as more than a 50% likelihood. Consequently, when determining causation, you do not need to be absolutely certain that you are correct, but you should be more sure than not. Remember, anything is “possible,” but the court wants to know what is “probable.”

Two factors that need to be considered are timing and mode of injury. Timing refers to the time sequence of the event in question relative to the pathology causing the plaintiff’s dizziness. Mode of injury refers to the mechanism, such as blunt head trauma, noise trauma, and explosion. Obviously, in a patient with immediate onset of vertigo after a sledge hammer impacted their occiput, both the timing and mode of injury would seem reasonable to be accepted as more probable than not that the head trauma caused the vertigo. However, if you later find out that the patient did not have any vertigo or dizziness until 1 year after the sledge hammer incident, then you would likely conclude that the vestibular problem was more probable than not to be unrelated to the head trauma. Similarly, a situation in which a plaintiff complains of dizziness immediately after a tap on the shoulder, you might reasonably conclude that although the timing might be appropriate for causation, the mode of injury is inconsistent with the pathology observed. In this case, you would find it is more probable than not that the shoulder tap did not cause the dizziness. The two main questions to be answered are: (1) is the mechanism of trauma appropriate for the injury; and (2) is the timing appropriate to link the pathology to the alleged incident? A word of caution: it is inappropriate to take the patient’s (or the attorney’s) word for the mechanism of injury. You are the expert and it is your job to make this determination. Both the patient and the attorneys (defense and plaintiff) have a significant stake in the outcome of your determination. Remain objective and verify anything you are told with objective findings, such as the medical record or test findings.

Prognosis

After determination of objective pathology, causation, and probability, the next step is determination of prognosis. In this regard you need to consider the average, the best, and the worst-case scenarios. You also need to consider sequelae that may be many years in the future. For the patient who has been seriously damaged, this may be their only chance for monetary recompense. The basis for the plaintiff award is entangled in the prognosis. Any future medical and nonmedical needs should be considered. A recent conversation with a plaintiff attorney was enlightening. I had seen his patient and treated her benign paroxysmal positional vertigo (BPPV). I informed him that he had a good case and that his client was already cured. He took this as a good news/bad news moment. He had a good case, but because the client was cured, there would be little monetary award for future medical or other needs.

Interacting With Lawyers

Many physicians mistakenly believe that an attorney who hires an expert wants that expert to simply support their case. Although this may be true for a small minority of attorneys, our experience has been quite the opposite. Some of the most thankful attorneys were ones we had to give the “bad news” that their client had findings consistent with symptom amplification, nonphysiologic results, or outright malingering. Plaintiff attorneys sink a lot of their own money into their cases, and the amount of money “invested” is often substantial. The last thing a plaintiff attorney wants to do is to get all the way to a trial (read: large outlay of their own money on an expensive court trial) and then finally find out that their client is malingering. Similarly, a defense attorney who finds out that the plaintiff is legitimate and will likely win at trial is much more willing to offer a generous settlement in pretrial negotiations than risk losing at trial. Therefore, defense attorneys also generally want an objective, truthful evaluation, rather than an expert who simply supports their case.