What is a Medico Legal Evaluation?
The purpose of a medico legal evaluation is to independently assess and document an individual’s psychosocial, psychological, and neuropsychological functioning with the ultimate goal of informing and assisting the trier of fact (e.g., judge, jury) regarding the person’s mental health status in relation to the identified legal issue(s) being evaluated. In the case of sexual abuse and trauma evaluations, the typical legal issues are related to custodial determination, child protection, personal injury, or criminal matters. A report of these evaluations may also be useful for clinical intervention and treatment recommendations.
The forensic evaluator is primarily concerned with objective, data-driven information, as opposed to subjective or self-reported information . Depending on the nature of the referral question, the forensic evaluator often engages in a forensic interview and review pertinent records (e.g., psychological testing, military records, school records, hospital records, medical records) to assist in formulating an opinion regarding the person’s mental health status, including the presence or absence of DSM-5 diagnoses and/or behavioral disturbances. This information is supplemented by current clinician-administered psychological and neuropsychological instruments and standardized self-report instruments. It is important to note that interpretation of these measures is only appropriate in the context of the referral question, the reported personal history, and the examiner’s professional training and expertise.
The Components of Medico Legal Evaluations
Medico legal evaluations typically include thorough analysis of and opinion on the nature of the injuries and the mechanism of injury. The medical records are carefully reviewed, diagnostic studies are analyzed, and the patient’s complaints are discussed in detail. A well written expert opinion can provide evidence of causation, extent of impairment including permanent impairment, when applicable, extent of disability, and future treatment recommendations.
A pediatric case may require a discussion of growth and developmental milestones. An appropriate expert must have experience with the age of the child and must be familiar with childhood developmental norms. In that regard, the analysis of the records and the opinion may be enhanced by interviews with family members and caregivers. The mechanism of injury is discussed in MSK cases, including but not limited to, what type and amount of force is required to cause the claimed injuries. The expert’s opinions may include medical fact and causation in the context of the case at issue. Care must be taken to ensure accurate recitation of the facts of the case. In some situations, a prima facie case may be established based on the medical records.
A personal history is important. The patient should be asked to provide us with information such as any prior history and description of current complaints. A physical examination is part of the process if appropriate. Functional testing may be employed to determine the extent of injury and/or disability. In some cases, special tests are necessary or helpful.
All good cases for medico legal opinions focus on: medical records; history; mechanism of injury; physical examination findings; functional testing, if appropriate; and diagnostic study results. After synthesis of the information obtained, a report may be finalized. This report must be properly referenced and should be current. The case at hand should be understood from an objective perspective. The forensic expert needs to independently evaluate the care received, the nature of the injury, and the future prognosis. In some cases, it may be appropriate to provide a range of impairments since it is not unusual for reasonable experts to differ as to the ultimate assessment.
Types of Medico Legal Evaluations
Following are the most common types of medico legal evaluations that are performed by a medical doctor or psychiatrist:
• Personal Injury Evaluations – for an individual who has sustained an injury in a motor vehicle crash, assault, slip and fall, defective product, etc. Essentially, the physician will provide an evaluation as to whether or not the complained of injuries are directly related to the incident which gave rise to the need for the evaluation. Generally, the physician will limit his evaluation to specific bodily areas which have been claimed by the patient to be injured. This type of evaluation may also include a review of medical records as well as more sophisticated testing if deemed necessary by the physician.
• Workers’ Compensation Evaluations – for an individual who has sustained a work related injury. Similar to the personal injury evaluations, the physician will assess the nature and extent of the claimed injuries and whether or not such injuries are causally related to the claimed work incident. In many cases, the physician may also provide a "return to work" or work "restrictions" assessment where they opine into the maximum medical improvement as to the injured body parts as well as physical restrictions.
• Disability Determination Evaluations – these evaluations typically involve the assessment of an individual’s functional impairment as it relates to his/her ability to engage in gainful employment. This evaluation is often requested by the individual’s disability insurance carrier or is required in order to assist in the determination of the individual’s eligibility for social security. The sound medical opinion of the physician will provide, in many cases, the ultimate determination of whether or not such claim is either approved or denied by the disability carrier or social security.
• Custody Evaluations – the objective of this evaluation is typical to assist the court in determining the appropriate guardian over an individual for purposes of administering their health care affairs. The physician will perform a clinical assessment of various factors including but not limited to cognition and memory, and may even requires other ancillary input from certain individuals who have knowledge of the patient’s medical history.
• Criminal Evaluations – often required to assist in the determination of one of the following: competency to stand trial; capacity to be tried as a juvenile or adult; or sentencing determination regarding a plea agreement. The physician performs a clinical assessment of many various factors including the individual’s mental status, history, and psychological tests as may be deemed necessary.
• Nursing Home/Medical Facility Malpractice Evaluations – in cases where there may be a claim that "reasonable and appropriate" standard of care was not provided to an individual, the physician may be asked to review the medical records as well as examine the patient in order to formulate an opinion as to causation. Much like the personal injury evaluations, the physician will assess the medical history and will perform clinical testing as may be necessary.
Medico Legal Evaluations Process
For a medico-legal evaluation, the evaluation typically commences with either a referral from a referring physician or consultation with an attorney with the physician playing either a passive or active role. The examining physician will collect detailed facts and records regarding the injury and medical exam(s). The exam or consult may be scheduled at a time that meets the patient’s needs. The evaluation will usually take place in the home or office of the evaluator. An interview with the referring physician may be done at the time of the evaluation. The number of written records should usually not be over five to ten pages. In cases where records do not reflect pain and impairment, the pain history can be medically validated by a simple five questions. All necessary training will be provided to perform the task. In the absence of chronic pain syndrome, patients should not be receiving long-term narcotics.
Examiner will go through issues above and then also issues about medication. Cases may be discussed that are similar either legally or factually. The examining physician will then write the report as a records review and analysis or do an on-site examination. The amount of charts and time usually involved from a referring physician is less than 30 minutes. There are several tests that are used in conjunction with the interview, which includes the use of psychological screening and diagnostic tests (MMPI). The tests are standardized and have been well studied for over fifty years. The tests will give some description of the pain, its qualities and severity; and an assessment of psychological factors that might be affecting the pain. The MMPI has 500 questions, takes up to three hours to complete and is scored by trained staff.
Legal Aspects of Medico Legal Evaluations
The legal considerations in medico legal evaluations include the right to confidentiality and legal privilege. In the British Columbia Court of Appeal decision in McKee et al. v. Britten et al. 2012 BCCA 21, (see Reality of Medico Legal Evaluations – Part Two), the B.C. Court of Appeal elaborated that: The CPL, on behalf of its individual clients, argued that the Royal Mahan Agreement ("RMA") does not exclude the claims or rights of the insurer or its insured. I cannot accept this submission… The RMA provides that no information arrived at as a consequence of an obligation under the CPL which falls into one of the categories specified in the agreement may be disclosed or allowed to be disclosed, or used in evidence in any proceedings, without the consent of the clients or on leave of the court. The CPL did not assert that its clients had waived privilege in the documents, and the CPL could not have ratified a breach of an obligation to its clients by entering into a confidentiality agreement with the Royal Mahan. (McKee, at para . 55; emphasis added) The Court of Appeal confirmed that IPP information, including Civil Resolution Tribunal ("CRT") information, is entitled to confidentiality and thereby not subject to disclosure, because of client-lawyer privilege, and that the Agreement did not override the CPL’s duty of confidentiality. An example of this can be found in the decision in Huang v. Wong et al., 2007 BCSC 586, where the injury plaintiff was compelled to attend a medico legal examination by a private orthopaedic examination. In this case, the injury plaintiff moved to set aside the summons and sought an order that the court grant a summary trial of his claim on the ground that no further expert evidence should be allowed beyond the injuries issued in the original report. The Court dismissed the application and held that the defendant was entitled to have the injury plaintiff attend for further examination. Further, in dismissing the application, the Court stated, "There is no authority, nor has any reason been advanced, that would circumscribe a party to limit the scope of his or her expert opinion report to only that contained within the first medical-legal report." (Huang, at para. 14)
Challenges in Medico Legal Evaluations
Medico legal evaluations are often contentious and challenging, when the medical opinions seem to contradict the physical findings. A common bias is that the clinician will inadvertently find the one per cent (or less) of those who actually have a disease or disorder, instead of the ninety-nine per cent who are well. This bias is compounded when the examiner does not ask the right questions, or is not able to interpret their meaning. For example, when they ask about trouble sleeping, and the client says, "I only sleep a few hours each night", many lawyers assume that this means that the troubled sleeping is caused by pain, and on that basis, they will then cross-examine the key witness – the family doctor – on the question of whether there is any objective evidence of pain to account for the sleeplessness. Yet this is a misunderstanding of the experience of pain in insomnia.
There is a great deal of medical terminology that most lawyers cannot understand in a report from a doctor. The doctor will use terms like ‘dorsum of the right forearm’, which simply means the back of the right forearm. Most lawyers likely stumble upon the reports of a neuropsychologist and just give up trying to find the meaning of what they are trying to say. Many people who think they have the problem will have trouble reading the evidence of those who do have the problem.
In the realm of IME’s, there are many biases and problems in the data. The first is that many of the people being evaluated are anxious and the evaluating doctor is responding to that anxiety with defensiveness. In other cases, the doctor is biased and gives an opinion only contrary to that expressed by the treating doctor. These biases may colour the whole report. The doctor may fail to report the under-reporting of symptoms by the client, or the over-dramatization of symptoms by the client. The doctor may report that the client is healthy when they are really unhealthy. The doctor may report that the small number of people at work are the healthy ones because they are at work, when the majority of the ill people are home sick.
Bias and misunderstanding thus can lead to exaggerated, misconstrued, misreported and misrepresentative reports. This makes them misleading or outright fallacious.
Utilization of Technology in Medico Legal Evaluations
The advent of digital record keeping has had a profound effect on medico legal evaluations. In the past, legal and medical practitioners needed to maintain voluminous chart notes related to their care of individuals. Today, such information is maintained in electronic health records, available on computers, and is accessible electronically through the internet. Charts are created that reflect each visit, which can be retrieved via a single click on a button, rather than being pulled from a seemingly endless collection of handwritten charts from forty years ago. This has made researching the medical history of injured individuals far more efficient than ever, and vastly improved the ability to identify patterns in the care of the individual.
The technology of electronic charts also facilitates preparation of expert reports. During an initial medico legal assessment, an individual may have a large number of pages of medical records from various providers. This is often formidable paperwork for an expert, which can be challenging to review for the purpose of preparing a report. However, computer programs can now be used to copy and paste relevant information into a report, reducing time and effort in preparing the report.
With improved access to medical information and computerized reporting, it is not surprising that testing is being computerized as well. The most popular tool currently is called the Computerized Tomography (CT) Cognitive Assessments. This test was developed in the US specifically for litigants and is designed to assess cognitive and psychological functioning in tortuous personal injury cases. A strong advantage of computerized testing is that it can be readily standardized, and controlled to avoid bias and error. When an examination is completed, the raw data is transferred from the computerized testing hardware into a computer program. A report is automatically generated which summarizes the findings of the examination. The automated report standardizes the assessment and ensures that any expert conclusions are properly grounded in the raw data.
What is on the horizon? Telemedicine is also changing the nature of medico legal evaluations. Telemedicine allows practitioners to assess individuals from anywhere in the world – via a smart phone or a specialized computer interface. The system for such assessments is similar to being at a hospital ward or penitentiary and places the practitioner face-to-face with the subject matter expert, who can be located globally. Online examinations have been conducted across Europe, North America and Asia. Currently the technology allows for clinical interview, and assessment of physical injuries, including range-of-motion of the spine and limb. The technology does not yet allow for evaluation of the upper and lower extremities or the spine. With further improvements, the technology could potentially allow for close scrutiny of x-rays, MRIs and other imaging without the risk of costly travel, especially for individuals in remote areas.
There are various advantages to computerized testing, both in terms of efficiency and reliability. However, the final assessment remains in the hands of the individual physician. Therefore, when choosing a medico legal expert, the reader may find it helpful to consider not only the experience and credentials of the expert, but also the technology and systems used to assess the individual.
Selecting the Right Medico Legal Expert
A doctor who is actually willing to make an appearance and give evidence in court is worth their weight in gold. There are also rules in most countries that dictate the way that such medical evidence must be provided, such that a doctor must be genuinely qualified and have extensive experience about the topic that they are being called upon to comment on. The best medico legal expert witness is someone who not only knows their field back to front , but someone who has also taken the time and put in the effort to understand the intricacies of giving evidence in court.
There is arguably no one more immune to the legal process than a doctor or physician. With their background in medicine, these are some of the most unlikely people to ever find themselves having to give evidence in court, and so getting it right can be somewhat difficult. However, the best doctors will ensure they also know all that there is to know about the legal process, and so will be in the best possible position to ensure that they know exactly how to conduct themselves when called to give evidence.
+ There are no comments
Add yours