Lead Article

Plaintiffs’ Docs and Defendants’ Docs – Do They Exist?

Yes, I am afraid they do. In fact, you all know who they are. I can think of one or two colleagues who really are “bleeding hearts”. They accept at face value and as fact everything that plaintiffs say. They calculate losses far in excess of those calculated by their colleagues. These enormous differences in opinion usually result in all of us going to Court. Similarly, some expert reporters are particularly harsh. It appears that they have a grudge against plaintiffs and have a birthright to support insurers only.

Avoid the Extremes

Whichever extreme is reviewed, neither is appropriate. Objectivity, transparency, fairness, reproducibility and common sense should form the basis of an expert orthopaedic medicolegal report.

I recall one of my older colleagues, now retired, who believed that every plaintiff was “bunging it on”. He was of the view that almost regardless of the impairment that had been sustained, the plaintiff would still have the ability to be an Olympian.

Another colleague seemed to believe that no matter how trivial the injury and how minor the impairment or the disability, the plaintiff was destined to be in receipt of a Disability Support Pension forever.

The Middle Ground

It has often occurred to me that these polarised views should be avoided. I suppose I can understand why a plaintiff’s lawyer may seek a softer, more supportive opinion whilst a lawyer acting for an indemnity insurer may follow a harder line. Despite these natural tendencies, mediators or judges can also surely see through the mist. I remember another famous colleague, now deceased, who joyously claimed in Court that “well he measured 15% and I measured 5% so the judge’ll just make it 10% and we can all go home”.

As true as that might be, had both reporters come in accurately at 10%, then the trial would not have been necessary. The time, the anguish and the expense could all have been avoided.

There is a trend for the lawyers for both plaintiffs and defendants to co-fund a single objective, middle-of-the-road report. This trend is to be applauded and encouraged.

General Advice

Who Should Provide Medicolegal Reports?

Experts.

That sounds like a glib response to the question but it does contain some truth.

It is a Special Calling

Medicolegal reporting is a subspecialty in its own right. For many years it was viewed by aged and retiring orthopaedic surgeons as an avenue to supplement an income into retirement. As the surgical clinical practice evaporated, and in the absence of healthy superannuation portfolios, some of our aged colleagues experienced a financial pinch after retirement. They would drift into medicolegal reporting, relying upon decades of clinical experience, imposing untested and sometimes erratic views upon the Courts.

That is not to say that all retiring orthopaedic surgeons behave so badly. In fact, some of them have been extremely valuable and accurate medicolegal reporters.

The point is that age and clinical experience alone are insufficient to guarantee excellence in medicolegal reporting. A good reporter will also have experience within the medicolegal arena. He or she will be a regular attender at medicolegal conferences, subscribe to medicolegal journals and be open to constructive criticism and advice from all members of the joint professions.

The best medicolegal reporters are those who enjoy providing medicolegal reports, do engage in continuous medicolegal education and are open to the ever-expanding horizon of this specialty.

Case Vignette

Overreaction And Inconsistency

Not all patients are ridgy-didge. Not all patients are as badly affected as they have you believe. Not all presentations can be explained in purely orthopaedic terms.

That is to say, some patients overreact, behave inconsistently, embellish their circumstance or may even be true malingerers.

Differentiating between real and contrived presentations can be difficult and requires experience. Expressing opinions on the matter requires care and sensitivity.

There are no precise tests which can accurately and routinely differentiate between the real and the apparent. Orthopaedic surgeons do have some tests that they can perform which may indicate inconsistency and/or overreaction should those variations exist.

Interpretation of the tests should be carried out judiciously. If they are positive, they should be explained in detail in the report.

A courteous way of referring to the differential may be in the phrase “The presentation does not conform with any orthopaedic condition with which I am familiar”.

Useful tests include the application of different forces, at different times, in different locations during an examination. Sometimes a plaintiff may perform identical functions in different situations differently. Huffing, puffing, moaning and groaning are also noteworthy.

Not every case is as it might seem.