Lead Article

Should Medicolegal Reports Be Solicited From a Treating Orthopaedic
Surgeon

I am referring here to the provision of a report for the Court by an orthopaedic surgeon who has been intimately involved in the management of injuries sustained by a plaintiff in a personal injuries claim.       The inference is that the surgeon is conflicted in some way and may therefore be less than objective with the analysis. 

There are many issues to consider.  It would be reasonable to assume that the orthopaedic surgeon does have some considerable sympathy for the plaintiff given the nature of the injuries requiring orthopaedic operative intervention.  It is also possible that there have been some complications as a result of the surgical endeavour or worse still, maybe the surgeon did not perform as well as he or she may have desired.  In any or all of these instances, the surgeon may be tempted (consciously or subconsciously) to provide a more lenient report, embellishing the losses that have been sustained and the losses that may accrue in the future.

An alternative viewpoint might be that the treating orthopaedic surgeon is truly best positioned to properly understand the full extent of the injuries that have been sustained by the plaintiff.  The surgeon has witnessed firsthand the anatomical havoc that has been wreaked, understands the limitations of the reconstructions that have been performed and can provide a more accurate perspective on prognosis.

The Professional in Action

A third dimension strikes at the overall professionalism of the orthopaedic surgeon.  Does he or she have the ability to divorce any emotional link from the assessment and engage in true, unencumbered objectivity?  Can the surgeon recognise the potential for conflict of interest that might exist?  What if the injury spectrum being considered forms part of a highly specialised niche in orthopaedic surgery where few other qualified reporters are available?  

I do not have a strong view on this matter one way or the other.  I can see strengths and weaknesses in securing a report from a treating orthopaedic surgeon.  I can also see problems in securing a report from a non-treating orthopaedic surgeon who is poorly equipped to provide medicolegal reports.

In the final analysis, it is probably best to assess each surgeon as he or she comes and make a value judgement on an individual basis.

Case Vignette

Scarring And Other Things

Patients suffering personal injuries sometimes sustain lacerations resulting in scars.  Others require operative intervention which also results in some scarring.  Scars will vary in their severity, extent and cosmetic importance. 

Chapter 8 in the AMA 5 Guides deals specifically with scarring and the principles of assessment of scars.  Table 8-2 on page 178 is instructive.  Five classes of scarring can be quantified.  At the minor end, Class I yields a loss of between 0 and 9% of whole person function.  At the other end of the extreme, Class V yields a loss of between 85% and 95% of whole person function.

Most patients sustaining scars as a result of either lacerations or surgical intervention will be within Class I.  A loss of between 0 and 9% of whole person function can therefore be added to their previously combined losses for the purposes of quantifying general damages.

It is also possible that the scars may be of such cosmetic importance that plastic surgical revision is indicated.  Additional costs will be involved and these should also be quantified prior to settlement of the claim.

WorkCover Queensland has its own GEPI II assessment methodology.  The TEMSKI Guide allows the expert to quantify a loss from scarring.  

General Advice

Do X-rays Lie?

The problem does not lie with the x-rays.  Instead, the potential problem is with the viewer of the x-rays.  I am referring to the reporter, the expert who is interpreting the films.  

There is an old saying that the clinical circumstance cannot be worse than the worst x-ray image.  That is to say, not all radiographs will depict an underlying problem.  Conversely, if a problem is depicted, the problem is real.

Another interesting concept is the folklore that states that patients with exceedingly severe degenerative changes on an x-ray can be completely unaware of the condition at a clinical level.  I sometimes see this with the cervical spine.  Patients can have extremely severe degenerative disease at all levels from the base of the skull down to the upper thorax.  The disc spaces may be almost completely obliterated, large spurs may have formed, the end plates could be extremely sclerotic and osteophytes have protruded out and almost completely obliterated the intervertebral foraminae, the canals through which the exiting nerve roots are obliged to pass.  Despite the severity of these findings, a plaintiff may say that he or she was completely asymptomatic, completely unaware of any problem in the neck prior to the subject accident which forms the basis of the claim.  

In reality, the only time I ever see this circumstance in existence is in the Court room.  I suppose we should never say never in orthopaedics.  In this situation however, I can honestly say that I have never seen a patient with this type of radiographic appearance to be completely asymptomatic.  

It would be worthwhile being wary of this presentation if ever you encounter it.