Medical Experts: How Do You Respond When Asked the Question “What Are the Bases for Your Opinions on Causation?”
Most medical experts do not understand how to articulate their opinions on legal causation.
The pivotal issue on most personal injury cases centers on causation. A medical witness must, to a reasonable degree of medical probability, relate the injuries to the subject accident. For future pain and suffering and future medical care, the standard is to a reasonable degree of medical certainty. (Other legal foundational requirements involving medical necessity and reasonable and customary charges will be addressed in future Blogs. This blog is limited to he issue of medical causation for past injuries).
“Reasonable medical probability, “means “more probably than not probable” (51%).
“Medical certainty”, as it applies to future damages, means that future medical expenses and/or future pain and suffering are reasonably certain to occur in the future. It is a higher standard than reasonable probability.
The follow-up question in a deposition by the defense and under direct examination by plaintiff’s counsel at time of trial is: “What are the bases of your opinions on causation? Keep in mind that causation is never a slam dunk; and, no accident case that involves litigation has a perfect causation scenario. Pre-existing conditions, prior accidents, prior treatment, diabetes and osteoarthritis, even if remotely relevant, are always raised by the defense to attack causation. This is a format providing examples of responses to the question, “What are the bases of your opinions on causation?”
- My review of the medical records and the medical history provided by Mr. X indicates that Mr. X was asymptomatic in the affected areas prior to this accident for ______ (months) or ______ (years). His injury symptoms developed within _____(hours) _____ (days) after being involved in this accident. A delay in the development of neck and back injury symptoms following a motor vehicle accident is he rule rather than the exception. (Explain why).
- Mr. X was not taking pain medications before the accident and required pain medication, muscle relaxers and anti-inflammatory medications after the accident.
- After the accident, Mr. X’s pain scales were high (give them a range) (Explain how pain correlates with traumatic injury).
- Within ____ (hours) ______ (days) of the accident, Mr. X had positive neurologic and orthopedic test results (For each positive test and explain what injury it indicates).
- After the accident, Mr. X had reduced range of motion in he following areas: (give specific examples and explain how reduced ranges of motion correlate with injury).
- After the accident, Mr. X was referred to a neurologist or neurosurgeon or orthopedic surgeon for evaluation (explain the reasons why the referral was medically necessary). Mr. X, prior to this accident had no such referrals. Explain the concern that conservative treatment was not sufficient to resolve the patient’s symptoms indicating a mores serious condition than he had in he past.
- After the accident, Mr. X was referred to pain management (explain the reasons why the referral was medically necessary).
- Pain management performed X, Y, Z and the results were A, B, C. This confirmed the injury because ___________________________________.
- Although Mr. X had some (neck and back) treatment before this accident (if it applies): a) he recovered from his injuries and was asymptomatic before this accident; b) he returned to an active lifestyle without pain; and c) he participated in sports, fitness and recreational activities without limitations.
- After the accident Mr. X’s activities were limited in the following ways ________. These limitations do not appear in his pre-accident records.
- The accident as described by the traffic accident report and/or statements and/or answers to interrogatories and/or depositions depict an accident or event capable of causing movement that resulted in probable injury potential. Movement of Mr. X’s body is confirmed by the entries in the medical records and/or accident report and/or statements (Interrogatory answers, depositions) that I have reviewed. These documents indicate that_________________________________________.
- Although there is no way directly to equate injury to property damage, in my opinion, the significant events about the accident on injury potential are ______________.
- Mr. X, because of his pre-existing arthritic condition, was more prone to injury than a person without osteoarthritis. Osteoarthritis is generally an asymptomatic condition that can be made symptomatic by trauma. (Explain how conditions such as diabetes can affect the healing of musculoskeletal injuries and why prolonged treatment may be required).
- Mr. X was in a posture or position at the time of the accident that made him more prone to injury (head turned to the side, body twisted, looking in rear view mirror, etc.). He did not anticipate the occurrence of the accident, all of which made him more prone to movement and injury. (This is important for minimal property damage accidents).
- The pain generator for Mr. X’s symptoms was determined to be through pain management procedures and radiology reports at the ___ level of the spine. (Explain what the pain generator is and link it to the radiology reports and pain management findings to that level of the spine).
- Mr. X’s symptoms are consistent with a pain generator at that level of the spine. I find this correlation to be significant factor concerning causation.
- Even surgical candidates have good days and bad days. Their ability to perform is dependent on their use of medications so its not unusual for Mr. X’s condition to have its ups and downs dependent upon medication consumption and activity level. It comes as no surprise to me that his medical records indicate that Mr. X had days when he was in less pain and was functional than others.
- Mr. X’s prior medical conditions and prior injuries do not explain the acute onset of injuries after this accident. None of these prior medical conditions or prior injuries in my opinion form a reasonable basis for me to conclude that the accident did not cause Mr. X’s injuries for the following reasons: ____________________.
- Although there are some inconsistencies in Mr. X’s reporting of his medical history and symptoms to his medical providers, these types of inconsistencies are present in most medical records. Not all physicians can possibly take down everything that a patient tells them during an appointment. If it were possible for two doctors to simultaneously take a history and examine a patient, their notes would be different. All patients have lapses of memory when giving a medical history. These are common occurrences. Inconsistencies in medical records do not necessarily mean the patient is lying. I found Mr. X to be forthright and a honest historian and his medical records in my opinion do not support a secondary gain motivation in pursuing treatment.
- Without Mr. X experiencing a traumatic event, it would not be probable for him to coincidentally develop these long-lasting and severe symptoms. This degree of symptoms would not be caused by performing normal everyday activities.
- In my opinion, from the documents that I have reviewed and my examination and treatment of Mr. X, I cannot conclude that the accident didn’t cause Mr. X’s injuries and resulting symptoms. Based on the information that I have, in order for me to reach the conclusion that the accident did not cause Mr. X’s injuries, there must must be a reasonable basis for me concluding that something else, other than the subject accident, caused the onset Mr. X’s symptoms. Considering all of the evidence that I have, there is no reasonable basis for me to conclude that this accident did not cause Mr. X’s injuries.
Most likely no attorney has ever received a medical expert report that covers all of most of these points on the basis for a causation opinion. The reason that we don’t get these types of reports is because nobody ever provides medical experts with this type of format. Now that you have this format, you can incorporate it into your medical reports and use it to prepare for your deposition and trial testimony?
If a medical expert presents no bases for his opinions on causation other than a temporal link between the injury and the accident, or that the patient relates that his symptoms began after being involved in the subject accident, this is a very weak and insufficient basis for establishing causation on an injury case.