SUMMARY: Medical malpractice litigation is expensive and high-risk. Obtaining supportive medical expert opinion is the largest budget item. Much can be done to limit costs.
Medical malpractice plaintiffs are generally at considerable economic disadvantage.
The Canadian Medical Protective Association (CMPA), that provides defence for the vast majority of Canada's physicians and surgeons, boasts a war-chest of about $1B.
Because the CMPA is a virtual-monopoly mutual indemnity association, rather than an insurance company, its economic planning is long-term.
To avoid setting precedents, the Association will at times invest far more in Defence than the individual case is worth in Quantum of Damages.
According to statements made to the press by counsel, $100K is an average Defence budget for Actions that proceed to trial, and the CMPA will, if necessary, spend five times that figure or more.
Depending on the complexity of the issues, a single medical written expert opinion for medical malpractice litigation may cost as much as $7000.
For a case that is potentially defensible, the CMPA will typically field 3 experts on Standard of Care - and on Causation if necessary.
Because medical malpractice is such a high risk area, a potential minefield for the unwary, much can and should be done by plaintiff counsel to save time for the medical expert.
In all but the simplest cases, this economic planning requires team planning by lawyer(s) and a resource physician.
1. Predetermine the medicolegal issuesThe greatest savings can be achieved by determining and defining viable litigation strategies.
Although the Statement of Claim must be comprehensive in detailing all the areas of possibly substandard care, the Cause of Action should be refined and simplified ahead of soliciting medical expert opinion.
To conserve resources, the game plan must be mapped in detail before the expert is involved in the case.
In particular, it is important to determine that proposed Negligence is also viable on both Causation and Quantum of Damages.
Although res ipsa loquitur is no longer applicable in medical malpractice litigation, many Causes of Action describe an adverse outcome without identifying elements of care that are putatively substandard.
Exceptionally there is circumstantial evidence that might lead a medical expert to conclude that the adverse outcome was Caused by specific elements of substandard care.
Where proposed violations of standard care can be identified, the Cause of medical malpractice Action is usually clear-cut and should be spelled out in detail to the potential expert.
This definition of the litigation strategy is usefully translated into carefully-worded, forced-choice questions that the expert should address in preparing any written expert opinion.
Practice PointTo reduce costs of medical expert opinion: |
Such limitations on the issues to be addressed can be combined with a question that opens the door to alternative Causes of Action.
However, the expert should be instructed not to spend time and incur expense on these new strategies until they have been evaluated for viability on Standard of Care, Causation and Quantum of Damages.
In general, physicians who are prepared to provide medical malpractice expert opinion are either defence-oriented or fair-minded.
Canadian physicians who are plaintiff-oriented are exceedingly rare.
According to the Canadian Medical Protective Association, only 7-8% of Statements of Claim filed in Canada are resolved by trial. Furthermore, plaintiff medical expert witnesses have a a high burn-out rate.
Consequently, most of the appropriate physicians who are available for plaintiff expert opinion are not experienced in providing testimony, at least in medical malpractice litigation.
Where appropriate alternative medical experts are available, an important economic criterion in selection is the physician's willingness to work with lawyer and resource physician as a team and accept guidance and instruction, as follows.
3. Provide limited documentationEven where 98% of the records are irrelevant to the medicolegal issues, medical experts often overview far more than is necessary, to make certain that they are not missing crucial facts.
Such meticulous attention to detail provides poor returns and is costly in time and fees.
An exception might be the detailed analysis of disability that determines Quantum of Damages.
Experts on Standard of Care do not need detailed documentation of outcome issues.
Indeed, according to legal principles, Standard of Care should ideally be determined without knowledge of outcome.
In practice, not only is the adverse outcome inevitably known to the experts on Standard of Care, but there is, in any case, considerable evidence that severity of outcome rather than the occurrence of negligent error determines settlements and judgments.
Similarly, experts on Causation need a small fraction of the records with which they are usually provided.
Usually, the bulk of the records that are required are consultation reports and relevant investigation results.
4. Give detailed instructionsWe have previously provided model generic instructions.
Practice PointTopics for Instructions |
An incomplete understanding of legal requirements and rules of evidence is the norm for physicians, including many who have considerable experience in medicolegal expert opinion and testimony.
Practice PointStructure of Written Opinion |
5. Organise the clinical records
If the essential clinical records are bulky - usually for opinion on Causation rather than Standard of Care - much expert time and expense can be saved by document management.
Placing a divider before each document is excessive and counterproductive, but organisation by date and/or type of record helps navigate the expert.
Sometimes the very presence or absence of a copy of a clinical document in a defendant's record is important for determining Standard of Care issues.
Otherwise, if copies from multiple sources are identical and free of annotations, duplicates can usefully be removed for purposes of expert opinion.
It is essential that the litigator not receive written opinions that are unsupportive of the plaintiff's position.
This is not only economically unsound, but the existence of the adverse opinion is potentially disclosable to the Defence.
Less experienced medical malpractice counsel may waste money by asking or permitting medical expert witnesses to submit a written report without prior discussion of their conclusions.
A minority of medical specialists will refuse to conference after reviewing the clinical records and before committing to writing, and such physicians should be avoided as medical experts.
7. Submit clinical research papers
Medical experts, including academics, continue to omit medical literature research from expert opinion.
Since the early 1990s, Evidence Based Medicine has required that "authorities" base their opinions on more global knowledge, rather than the limited experience of a single clinical career.
If medical research papers that support the litigation strategy have previously been identified, full-text copies should be submitted to the medical expert for comments on their strength as evidence, and their relevance to the particular case.
Copyright © 2009 Electronic Handbook of Legal Medicine