What are the benefits of a medical consultant?

And why should we use them as part of our case strategy plan?
By Jessica Chow

 
 

Lawyers often utilize expert witnesses during litigation.  This is true for California Worker’s Compensation cases, although not in the glamorous trial setting typically portrayed on television.  The WCAB typically does not allow for expert testimony at trial.  Instead, we employ medical experts to produce medical-legal reports, which is generally the most critical evidence in a worker’s compensation case.  We call these physicians Panel Qualified Medical Examiners (PQME) or Agreed Medical Examiners (AME).  Medical-legal evidence can be used to prove or disprove a contested claim, to establish various elements of an applicant’s claim, or resolve other pointed disputes.

AME’s and PQME’s are given great deference when it comes to disputes of a medical nature, and their opinions are generally found to be conclusive.  However, what happens if the expert’s opinion is flawed and detrimental to our client?  How can we attorneys, who are not medical professionals, effectively protect our client’s interests, if everything is ultimately deferred to the QME or AME?  How can we gain the knowledge and ammunition needed to combat or bolster the medical expert’s opinion, to provide the most favorable outcome for our clients?

While a PQME and/or AME is the most common expert witness used in worker’s compensation litigation, another type of expert witness that is underutilized, but can be extremely advantageous, is a consulting expert or physician.  A consulting physician can help an attorney navigate complex medical issues and understand medical conditions and diagnoses.  A consulting physician can also help attorneys understand the full exposure of a case, or which key facts matter, which in turn can affect overall litigation strategy.  Generally, the consulting physician will not be able to examine the injured worker, but the information the physician provides can still be invaluable.  The consulting expert serves to educate counsel on specific technical or specialized issues. Typically, these consulting physicians offer the most value cases involving complex injuries or a medical diagnosis that is better understood with some methodological background. 

For instance, take an injured worker who was a victim of an armed robbery and suffered two gunshot wounds through the torso, striking various organs.  The injured worker was hospitalized and required multiple surgeries, some of which had complications, which spawned another series of surgeries.  After some time, medical treatment tapered off and it was unclear what the injured worker’s ultimate prognosis was. 

This fact pattern presents an unusual mechanism of injury, one that we do not often see in workers compensation.  Further, the medical issues were many and convoluted.  Of course, applicant’s counsel argued his client would have a lifetime of medical issues with various body systems such as a shrunken abdomen, nutritional deficiencies, issues with the colon, immunological issues as the spleen was removed, and more.  Even if actual impairment was low, lifelong medical treatment would be substantial and costly. 

Based on the facts as stated, it is hard for any layperson to disagree that this individual may face challenges in life due to the injury.  However, we determined that an expert’s opinion was necessary in order to truly understand and evaluate the exposure, nature and extent of injury, and medical validity of the applicant attorney’s position regarding future treatment.

The parties could have just gone to an AME or QME, in one or multiple specialties; but in doing so we would have been going in blind.  If the parties went to an AME, more likely than not, it would have been in applicant’s favor and defendant would be bound by those findings. 

Instead, we as defense counsel retained a consulting physician in internal medicine who reviewed the voluminous records and was able to provide a consultation to explain the true nature of the applicant’s injuries and condition.  Not only did the doctor render an opinion that seemed to indicate the applicant had made a remarkable recovery, but the doctor also debunked, with technical support, many of the theories that applicant’s attorney argued.  The doctor talked defense counsel through the records, the series of surgeries, what each procedure was for, and the outcomes.

In addition, the doctor provided insight as to what additional documents, tests, or records would be important to obtain should the parties litigate rather than settle.  The consulting doctor also provided his opinion as to impairment for the various body systems so defense counsel could rate out and gauge permanent disability exposure.  The consulting doctor also gave advice that due to the applicant’s surgical history, from a medical legal perspective, the best specialty to evaluate the applicant would probably be a general surgeon.  If litigation continued, the consultant would have also been able to review the QME or AME’s report to find weaknesses or assist in preparing for cross-examination.

Armed with this information, we were ultimately able to resolve this case in the early phases of litigation for thirty percent of what applicant attorney’s valuation of the case was, and for about fifty percent of what defendant estimated the overall exposure to be if the claim was litigated.  The case settled and closed within the first year of litigation, and at a discount.  Without the use of the consulting expert to help us fully understand the issues and potential exposure, the case strategy would have been different and likely more costly for our client.

Although attorneys are knowledgeable and well versed in their respective practice areas, a good attorney will recognize when there may be issues beyond their scope of expertise.  By consulting with experts when needed, generally consulting physicians or raters in the worker’s compensation context, we can better serve our clients by tailoring a litigation strategy suitable to a client’s specific needs.

Have any questions? Want to learn more? Visit Jessica’s Page and reach out! 


KHL Lawyers