First published in The Lawyers Weekly February 25, 2000, Vol. 19, No. 39
Personal Injury Lawyers need to converse effectively with physicians. Aspects of causation and their contribution to quantum of damages are often the most contentious aspects of personal injury litigation. Here are some of the more important hurdles to communication with medical expert witnesses.
Physicians speak a different language. Their concepts are different from those of a lawyer. They use the same terms but may mean different things - medical definitions of impairment, disability and handicap are significantly different from legal meanings. Medical causation and legal causation differ.
Translations between medicalese and legalese are the easy part. Differences in the way litigators and clinicians think are greater obstacles to effective communication.
Individual medical causation is clinically unimportant. Physicians rarely concern themselves with the causal factors of a particular illness or disability. Why did the appendicitis occur now and not last week? Why did this boy get meningitis whereas his sister only had cold symptoms from the same germ?
Certainly general causation (pathology) is central to the differences between diseases, but the clinician’s focus is on recognising the pattern (diagnosis) and explaining and modifying the prognosis (treatment). Why him? why now? does not come into it.
Few physicians understand legal causation. “Absent this factor, would the outcome have been materially different?” is alien to the way clinicians think. Whether particular causal factors are sufficient or necessary is largely irrelevant to the practice of medicine.
The reality is that this particular disease has occurred in this particular patient, and most of the causal factors are a matter of surmise. Would the heart-attack have occurred whether or not he had had an unusually heavy meal? Would she have missed her footing if she had not been premenstrual? Physicians do not practise this way of thinking, because the questions are fruitless in a busy clinical practice.
Many causal factors are little understood. In a multifactorial biological system, it is often possible to predict occurrence of an event only within a range of probability. Even on a statistical basis, answers to causal questions depend on the context. Thus, rear-ending collision “causes” late whiplash in a small and predictable proportion of victims in Canada - but not in Lithuania. How the socioeconomic context translates into illness and disability remains in the realm of surmise: few pieces of the biological jigsaw are in place.
Physicians rarely think “balance of probability.”
Medical causation is established by rigorous and painstaking laboratory and clinical research. Certainly physicians act on likelihood in recommending therapy when diagnosis cannot be certain. When the antibiotic sensitivities of the infecting microbes cannot be known for a day or two, “best guess” therapy is started, and modified later if necessary.Response to such trial of therapy can be part of the diagnostic process, but clinicians balk at the idea of pronouncing on “greater than 50% probability”, particularly when critical information is missing. The criminal test of “beyond reasonable doubt” is closer to scientific levels of proof with which doctors are more comfortable.
The adverse consequences of personal injury are rarely diseases. Physicians are trained to think in terms of disease. Individual diseases are defined by differences in medical causation (pathogenesis). Once the physical healing of soft tissue injury is complete, in 3-6 months, residual chronic conditions are largely syndromes. Syndromes are collections of signs and symptoms for which the pathological basis is little understood.
Causation of syndromes is speculative. Whether a given factor is accepted as a cause of disease depends on evidence from human experiments, strong and consistent association, a close relationship in time, response proportional to dose, epidemiological and biological sense, specific association, analogous to a previously proven causal relationship. Post-traumatic syndromes generally fail most of these tests. Fibromyalgia Syndrome tends to follow long after injury, and generally occurs after minor injury, rarely after major.
Many symptoms appear and persist for no discernable reason. Various pains, fatigue, bowel symptoms and cognitive problems commonly prevail, newly appear and fluctuate, in the healthy, uninjured population. Even if the pre-accident clinical records document no such pre-existing pattern, population studies repeatedly show how commonly reported are such complaints if asked. An intervening traumatic event readily becomes a focus for misattribution of symptoms that might have occurred anyway.
Psychological factors are more powerful but less measurable. The principal determinants of (legal) impairment are not objective functional limitation, but pain, psychological distress, fatigue and sleep deprivation. Conventional medical science cannot explain to the court why the defendant driver is gainfully re-employed despite her multiple fractures and a moderately severe head injury, whereas the plaintiff remains disabled after his mild soft tissue injury.
Doctors need educating in medicolegal concepts. Litigators who understand that some common legal concepts are foreign to medical expert witnesses will recognise the need to explain patiently and repeatedly. The old maxim applies to the dialogue between lawyers and physicians: do not underestimate intelligence or overestimate knowledge.
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