Knowing Your Audience When Presenting Medical Testimony
When you give medical testimony about a patient involved in a legal dispute, your audience is an important consideration. Your audience is the person or persons who will be considering and making a decision based on your testimony. This article explains ways to vary your presentation depending on whether your medical opinion is needed in a dispute involving your patient’s claim for a work injury, for Social Security disability benefits or for personal injuries resulting from negligence.
MEDICAL TESTIMONY IN WORKERS’ COMPENSATION HEARINGS
If your patient had a work injury, or a condition developed at work, his or her claim will be considered by an “Administrative Law Judge” (“ALJ”). An ALJ must be a member in good standing of the Oregon State Bar (or the bar of the highest court in any other state or the District of Columbia.) The ALJ, then, will probably have a law degree, will have passed a Bar exam and probably will have practiced law. He or she will be well-versed in Workers’ Compensation law and will have reviewed the medical records and opinions related to hundreds, if not thousands, of injured workers. You may, therefore, assume a well-educated audience, familiar with medical terminology.
However, since each case must be considered on its own evidence and merits, your opinion should not assume medical expertise needed to draw conclusions about issues such as causation. The ALJ will be looking for a well-reasoned, medically informed explanation of your opinion. Your opinion should also reflect a complete and correct knowledge of your patient’s relevant medical history, as well as the details of the mechanics of the work incident or activity involved in your patient’s claimed work injury or condition.
Your explanation is critical since an ALJ is liable to reject as “conclusory” an opinion on causation without a medical explanation. Also, the ALJ will expect more from a medical opinion on causation than simply identifying a “temporal” relationship of the work incident to the injury. So, your explanation on causation should not be based solely on the fact that the injury or condition came after the work incident or activity. If the temporal relationship is important to your opinion, explain why in medical terms.
If you are asked whether the work incident or activity was the “major cause” of your patient’s need for treatment and/or disability, the ALJ will be looking for a clear explanation why work was at least 51% responsible. Also, the ALJ will want you to identify the relative causal role of all other potential causes.
If you were the treating physician and your opinion is based on your personal observations (during examinations or in surgery), your opinion will be given deference unless there are persuasive reasons to adopt the opinion of another physician. However, if the issue you are addressing is considered a “complex medical question,” the ALJ will require expert medical analysis, rather than expert medical observation. So, your status as treating physician with first hand observations will not be an advantage. The ALJ will rely on the medical expert who provides the best-explained and most persuasive analysis.
In short, your opinion in a Workers’ Compensation case should be both well-reasoned and based on an accurate and complete history. Your explanation and reasoning will often be compared to the opinions of other medical experts hired by the insurance company opposing your patient’s claim to determine which is more persuasive.
MEDICAL TESTIMONY IN SOCIAL SECURITY HEARINGS
The decision-maker at a Social Security disability hearing is also an administrative law judge. Social Security ALJ’s must be attorneys with at least seven years administrative law and/or trial experience in administrative proceedings. The ALJ’s job is to function as an independent and impartial trier of fact, like a judge in a civil trial without a jury.
In most Social Security disability cases your “testimony” will be your written records, reports and responses to questions. However, you may testify in person or by phone at the hearing. There is no “opposing side” at a Social Security disability hearing, so you will not be cross-examined by opposing legal counsel, but only questioned by your patient’s attorney and the ALJ.
The Social Security ALJ will first consider whether your patient’s condition meets or equals “the Listings.” That is, does your patient’s condition meet or equal the specific medical criteria set out in the Code of Federal Regulations (20 CFR Pt. 404, Subpt. P, Appendix 1), under the subsection pertaining to your patient’s particular condition. If so, your patient is disabled as a matter of law.
(The categories include musculo-skeletal, respiratory, cardiovascular, digestive, genito-urinary, hemic and lymphatic, endocrine and immune systems; and skin, neurological and mental disorders, as well as neoplastic diseases [malignant] and special senses and speech.)
Therefore, in order to state whether your patient meets a Listing, you need to consult the above regulations for the criteria relating to your patient’s condition. Your patient may also be disabled if his or her medical condition equals the Listing; that is, if his/her medical impairment(s) is medically equal to the listed impairment most like his/her impairment.
If the ALJ does not find that your patient meets or equals a Listing, he or she will be looking for severe impairments objectively verified by medically acceptable clinical and laboratory diagnostic techniques. An impairment is severe if it significantly limits your patient’s ability to do basic work activities. A physical or mental impairment must be established by medical evidence consisting of signs, symptoms and laboratory findings, not just your patient’s statement of symptoms.
The ALJ has the ultimate authority to decide whether your patient is disabled under the Social Security law. Your opinion as treating physician is entitled to great weight.
In Social Security cases you may be asked to give your opinion by filling out forms or by providing written responses to specific questions. These questions may ask for your opinion on your patient’s “residual (physical) functional capacity” or “mental residual functional capacity” in terms of specific work-related limitations. It would probably help to discuss these questions with your patient, since your examinations and treatment may not have been geared to address these specific questions.
The Social Security ALJ will be more interested in whether your opinion meets very specific and structured standards, than in your credentials and your persuasiveness. However, if you sincerely believe your patient is incapable of persisting in any work activity day-in and day-out, week-in and week-out due to the pain, fatigue or other symptoms of his or her medical condition, say so. The questions on the forms may not ask directly. Be sure your opinion is based on a condition verified in the records by medically accepted clinical and/or laboratory diagnostic techniques.
If you feel strongly that your patient simply could not function in any work place, you may even want to offer to testify by phone (minimizing expenses to your patient) at the hearing.
The ALJ will evaluate your patient’s ability to work based not only on ability to meet strength demands (exertional limitations), but also on the way symptoms such as pain (and needed medications) impose “non-exertional” limitations, such as: ability to maintain attention and concentration; nervousness, anxiety and/or depression; or other difficulties which may combine with exertional limitations to result in disability.
Many Social Security ALJ’s decide cases based on whether they believe the claimant’s subjective complaints are credible. If you believe your patient’s pain or other symptoms are genuine (credible); and you believe that the pain and/or other symptoms render your patient unable to persist in any work setting day-in and day-out or week-in and week-out, then say so directly, stating also the reasonable medical basis for your patient’s symptoms.
If you believe your patient’s symptoms may cause excessive (more than 2 days per month) absences, say so. If you do not know whether the symptoms render your patient disabled, but you do believe the symptoms your patient complains of are reasonably based in his or her medically verified condition, please say so. (See article in this issue, “Medical Basis and Credibility in Disabling Symptom Claims.”)
MEDICAL TESTIMONY IN PERSONAL INJURY TRIALS
If your patient was injured in a motor vehicle accident (or another situation in which the alleged negligence of another caused your patient’s injury), your medical testimony will be considered by a jury. Unlike Social Security and Workers’ Compensation ALJ’s, the jury panel will probably have limited medical knowledge or familiarity with medical terms and records. Your job will be to explain medical information to them in much the same way you might to one of your patients. This calls for a simpler and more basic educational approach than that required for ALJ’s.
On the question of causation, all the jury needs to know is that the negligent act or omission was a substantial or material factor in producing the injury. This will require that you understand the mechanics of the incident brought about by the negligent act or omission well enough to explain its causal role in your patient’s injuries.
Once causation is established, you will be probably be asked to explain to the jury the medical bases of your patient’s “damages” resulting from the injury. Damages include: 1) the full extent of medical treatment required (past, present and future); 2) all the pain and suffering your patient had to endure, continues to experience and will continue to be afflicted with in the future; 3) loss of income resulting from any disability caused by the injury; and 4) impairment to future earning capacity due to any permanent disability resulting from the injury. (See MEDICAL-LEGAL JOURNAL, Vol. 13 [Summer-Fall 1999])
Your presentation to the jury in a personal injury trial should be as simple and direct as possible. Your preparation should give you sufficient confidence in your opinions and their factual basis to stand up under the potentially hostile cross-examination of the attorney opposing your patient’s claim and seeking to minimize your patient’s award of damages. Preparation with your patient’s attorney will help you know what to expect.
A jury is more likely to be impressed with the sincerity of your belief in your patient’s case, as long as it is based on the facts and on a consistent and defensible medical explanation. The lay jury will not be as likely to be impressed with complex and detailed medical analysis as would professional fact-finders, such as administrative law judges. Your simple, sincere and sympathetic presentation of your patient’s medical condition as a result of the injuries in question will help the lay jury return a fair verdict in your patient’s personal injury trial.
This article was prepared by Robert L. Chapman