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WHAT DO YOU MEAN I CAN BE SUED?

HOW TO PROTECT YOURSELF AGAINST POTENTIAL LEGAL LIABILITY

Avitzur, Orly, MD; Wishik, Jeffrey, MD, JD

IN PRACTICE

Neurologists often play a key role in evaluating individuals whose conditions have legal implications. As treating neurologists for patients involved in litigation, we are bound by a physician-patient relationship that includes a duty to provide a certain level of care. If we breach the applicable standard of care and harm the patient, we can be held liable for medical malpractice, a form of negligence. But what most of us do not realize is that we may also be exposed to legal liability for activities that do not involve a physician-patient relationship.

Many neurologists have expanded their medico-legal, nonpatient care activities in response to the income crunch that accompanied the managed care revolution. Some find work as expert witnesses or medico-legal consultants. Others perform independent medical examinations (IMEs), disability or impairment ratings, and medical records reviews. Generally, reimbursement of these activities far exceeds that of patient care and is not subject to the hassles that come from third party payers. As attractive as these options may sound, they also present unique risks. You may not be liable for a typical medical malpractice claim, but you can face lawsuits and other serious complaints for this work.

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RISKS OF INDEPENDENT MEDICAL EXAMINATIONS

What are some of the risks you face as an expert and how can you protect yourself? Every neurologist who performs IMEs should do a quick Internet search on this topic. There are many Web sites run by advocacy groups or angry individuals filled with vituperation about dishonest, greedy physicians who have sold out to the evil insurers. Unfortunately, the IME is perceived as an adversarial process.

The Florida Supreme Court acknowledged this when it held that examinees are entitled to bring their attorneys with them and videotape the proceedings. Neurologists interested in this type of work should consider educational programs and books from sources such as SEAK (www.seak.com), and credentialing from organizations such as the American Board of Independent Medical Examiners (www.abime.org).

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IMES: LIABILITY AREAS

There are several potential areas of liability for IMEs and similar evaluations, including, for example:

  • Civil assault and battery: Examinees will sometimes claim that you injured them during the IME. These allegations usually surface long after the actual evaluation, typically after your report reaches the examinee. Having a staff member present will help avoid some of these claims. Range of motion testing should be active, carried out by the examinee, rather than passive. Remind your patients that they should notify you immediately if there is discomfort produced by any procedure and that they can refuse to perform any particular maneuver. Before terminating the evaluations, ask patients to complete an exit survey that includes a section where they can report any problems that surfaced during the examination.
  • Defamation of character: Surprisingly, there are some physicians who are quite glib about using terms with very specific legal meaning – words such as “malingering,” “fraudulent,” among others. False statements communicated to a third party that harm a person's reputation can lead to claims for slander (if spoken) or libel (if written). If you cannot explain your patients' complaints on the basis of known neuroanatomic principles, say so. If there are inconsistent complaints or findings, document and explain them. If patients have levels of perceived disability that exceed actual activity level or measured abilities, point out these discrepancies. Symptom magnification is more likely to indicate maladaptive, unconscious illness behavior than to be part of a deliberate, conscious attempt to deceive. It is unwise to make conclusions about the source of such behaviors after a single evaluation.
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DISTINGUISH OBJECTIVE VOICE FROM THE SUBJECTIVE ONE

David Ketroser, MD, JD, an attorney who is also a neurologist with expertise in disorders of the spine, believes that it is important to distinguish between the subjective – what the patient perceives – and the objective – what the doctor perceives. He said: “The IME system is grotesquely broken and the consumer of this service – the lawyer or insurance company – may not actually care about the quality of this service. They look for physicians who will generate a report quickly and say that nothing is wrong.”

To distinguish between what is credible and not credible, he notes consistencies and inconsistencies. For example, if a patient barely moves his head while he is using an inclinometer to measure cervical flexion, but nods his head up and down vigorously when asked if he has pain, there is a discrepancy in performance that should be noted.

Dr. Ketroser offers this advice for neurologists performing IMEs:

  • 1. Don't ever say that the patient does not have pain; we cannot know this.
  • 2. Avoid words such as “alleges” and “claims,” which have negative connotations. Instead use words such as “reports,” “discloses,” “states,” “says,” and “indicates.”
  • 4. Don't offer an opinion; provide conclusions. For example, “I don't think this person should get anymore chiropractic care” is an opinion. Instead, ask the patient a series of questions and record their responses, for example: (1) Do you feel better when you walk out of the chiropractor's office?; (2) If so, for how long?; (3) How long does it take you to drive back and forth to the chiropractor's office?; and (4) Compared to a week or two after to the accident, have you improved?

The first three questions allow you to make statements regarding short-term relief, and the latter question about long-term relief.

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EXPERT WITNESS

Lawsuits against experts by the party that retained them – so-called “friendly expert” lawsuits – are on the rise. Usually, these are claims for professional negligence, not the same as a medical malpractice claim. When you agree to become an expert witness you accept responsibility to provide services of a certain quality and degree of diligence.

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STANDARDS TO FOLLOW

The manner in which the standard is met varies with the details in each case, but there are some general rules that you should follow. You must prepare adequately, review and understand the relevant medical literature, and know the facts. Your testimony must be accurate, truthful, and not misleading. Your behavior at all times should be ethical.

If your testimony fails to meet the standard, you could be sued for negligence. Traditionally, witnesses are immune from suit for their testimony. This immunity dates back to English common law and serves to encourage witnesses to come forward and testify freely and openly. However, based on decisions in a few states, witness immunity may be breached when a party sues its own negligent expert.

Courts have held that extending immunity to one's own witness does nothing to encourage truthful testimony (in California, for example) and that sheltering a negligent expert with witness immunity does not advance the public's interest in accurate testimony (in Pennsylvania). The courts in most states have not addressed this issue yet. Even if your state does uphold absolute immunity for testimony, what about other services you provide to the attorney? If your nontestimonial expert services – literature search, records review, and report analysis – are substandard, you may be at risk.

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Disciplinary Actions

Your testimony and other medico-legal activities might also land you in hot water with your state's licensing board. Edward David, MD, JD, a neurologist and Chairman of the State of Maine Board of Licensure in Medicine, cautions physicians: “You can be sued if your testimony is negligent, and you can be reported to a board if the testimony you give and the credentials you provide are false. However, if your opinion testimony is truthful, even though in the minority, it would not warrant action.”

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Furthermore, Sheldon Margulies, MD, JD, a neurologist and medico-legal expert practicing in Silver Spring, MD, advises neurologists to be aware that medical and specialty societies have been taking a closer look at physicians engaging in “false testimony” and several have taken strong disciplinary action. This is a complex and evolving area which is still relatively new.

The American Medical Association (AMA) has addressed this in its resolution 221 which states that (1) the giving of medico-legal testimony by a physician expert witness be considered the practice of medicine, and (2) all medico-legal expert witness testimony given by a physician should be subject to peer review. The AMA also encourages each state medical society to work with its state licensing board toward the development of effective disciplinary measures for physicians who provide fraudulent testimony.

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AAN RECOMMENDATIONS

The AAN recommends that a neurologist called upon to provide expert medical testimony should testify only about those subjects for which the neurologist is qualified as an expert by training and experience. Before giving testimony, the neurologist should carefully review the relevant records and facts of the case and the prevailing standards of practice. In providing testimony, the neurologist should provide scientifically correct and clinically accurate opinions. Compensation for testimony should be reasonable and commensurate with time and effort spent, and must not be contingent upon outcome.

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INADEQUATE INSURANCE COVERAGE

Have you read your malpractice insurance policy? Are IMEs and similar activities within the scope of covered medical practice? Is expert witness work covered? The AMA considers the latter the practice of medicine; your malpractice carrier may not. You may require a separate “errors and omissions” policy to protect you if your medico-legal activities give rise to a lawsuit.

If you are doing this kind of work, you need to consider potential problems. Take courses, read books, and go to conferences. Common sense can help you to avoid these dangers, but don't hesitate to consult an attorney if you have any questions.

©2002 American Academy of Neurology