april 27, 2018 dr. michel lacerte dr. avi orner · learning objectives to familiarize with the ime...

April 27, 2018

Dr. Michel Lacerte

Dr. Avi Orner

Content Outline

1. Introduction to Basic Concepts and the IME Process

2. Referral, Mandate, Contract and Legal Framework

3. IME Admin Aspects and Documentation Review

4. Health Claim Statement, Specialized Inquiry

5. Informed Consent and the Regulatory Frameworks

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6. History Taking, Functional and Psychosocial Inquiry

7. Observation, Physical Examination and MSE

8. Data Analysis, Opinion Formulation and Causal Analysis

9. Medicolegal Report Writing, Format, Style, Bias and Tone

10. Industry and Evidence-Based Best Practices

3 Content Outline

Learning Objectives

To familiarize with the IME administrative process steps

To conduct an IME using evidence-based best practices

To identify and apply relevant legal tests when formulating medicolegal opinions

To be aware of the importance of causal analysis in regards to liability

To prepare a quality medicolegal report that will stand the course of legal proceedings

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Disclaimer

The opinions expressed in this workshop and on the following slides are solely those of the presenters and not necessarily those of CSME/CAPDA.

CSME/CAPDA does not guarantee the accuracy or reliability of the information provided herein.

Nothing in this presentation or handouts constitutes legal advice.

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Section 1 Introduction to Basic Concepts and the IME Process

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Section 1. Introduction to Basic Concepts and the IME Process

1.0 IME Definition and Basic Concepts

1.1 IME Process Overview

Step 1 —Review Letter of Instruction and Legal Framework

Step 2 —Evaluation Plan

Step 3 —Health Claim Statement

Step 4 —Data Collection (File review and Clinical Exam)

Step 5 —Data Analysis (validation and corroboration)

Step 6 —Opinion Formulation

Analysis, Validation and Weighing Continuous Process

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1.0 IME Definition & Basic Concepts

The IME Defined

How does an IME report differs from a Medical Report?

Who request IMEs?

In what context are IMEs done?

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1.0 IME Definition

An examination performed by an independent health care professional who has no relationships with the examinee or requesting party, for the purpose of providing the requesting party with an outside impartial medical opinion about the examinee.

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“The medico-legal report in civil personal injury matters is to help a judge or jury decide issues of liability, causation and the appropriate amount of compensation for an injured person.

AND/OR … to determine the entitlement of the patient or claimant to certain benefits including income replacement benefits, and medical and rehabilitation expenses. “

10 The Medico-Legal Report 2008

The Medico-Legal Society of Toronto

11 Roles and Responsibilities

1. Provide all documents that are relevant to the issues to be addressed in the report.

2. Explain the overriding duty of the physician to assist the court on the matters within their expertise in an independent manner.

3. Explain the purpose of the report, the manner in which it will be disseminated and the use to which it may be put at trial.

4. Advise the physician of his or her obligation to attend the proceedings to give testimony.

5. Provide complete instructions outlining the questions to be answered and the standard of proof applicable to these questions.

1. Expertise to offer the opinion on the relevant issues.

2. Obligation to attend trial and give testimony as may be required.

3. SABS - it is considered an "unfair and deceptive act or practice" for an assessment to be conducted by a person whom the insurer or its representative knows or ought to know is not reasonably qualified to conduct the assessment based on training or experience.

4. The physician must provide complete, clear and reasoned answers to the questions to be answered.

Adjuster/Lawyer Assessor

Additional Information 12

How does an IME report differs from a Medical Report?

Require a specialized inquiry

Will generally be widely distributed

Must be easily read by lay people (non-medical)

May or may not lead to the well-being of the examinee

Should assist with the claim adjudication, management or disposition of the case

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Other Names for IME

Independent Medical Opinion (IMO)

Independent (Discipline) Examination

Impartial Medical Examination

Insurer’s Examination (IE)

Third Party Examination

Non-Treating Medical Examination

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Purpose

The IME is a tool of dispute resolution used when there is an element of a medical nature.

The dispute may be narrow and specific, involving questions of diagnosis, treatment, attribution, apportionment, negligence, prognosis, damages etc..

The dispute may be wide-ranging, involving long-range care costs or querying fraud.

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Multiple IME Forms...

Dependent upon the complexity, the length of the evaluation and report will vary.

General categories

File review

Rebuttal report

Full IME

Addendums

Video surveillance review

Life care plans

Etc.

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In what context are IMEs done?

Dispute Dispute Dispute

under

Many Jurisdictions, Systems and Legal Tests

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Section 2 Referral, Mandate, Contract and Legal Framework

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Section 2. Referral, Mandate, Contract and Legal Framework

2.0 Referral Process

2.1 Who are the Referral Sources

2.2 Mandate or Letter of Instruction

2.3 Matching Qualifications and Mandate (How to Say NO!)

2.4 Experience and Economic Considerations

2.5 Conflicts of Interest and Time Frame

2.6 Jurisdiction and Legal Framework

2.7 Risk Assessment & Loss Prevention

2.8 Contracts

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20 IME Process Overview

STEP 1ReviewLetter of

Instruction

STEP 3Health

Claim

Statement

STEP 4Data

Collection

STEP 5Data

Analysis

STEP 6Opinion

Formulation

STEP 2Evaluation

Plan

Analysis,

Validation

and

Weighing

Is Necessary and

Sufficient Data

Available?

Is the

Mandate

Appropriate?

Four Stages Illustrations

Stage 1 Administration

Stage 2 Clinical Evaluation (Data Collection)

Stage 3 Analysis & Writing

Stage 4 Billing, Shipping and Storing

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Who request IMEs?

Public and Private Insurers

Lawyers and Legal Representatives etc. …

IME Organizations

Agencies, Boards and Commissions

Courts and Administrative Tribunals

Employers, Unions, Individuals

Regulatory Health Professional Colleges

Military and Veteran Affairs

Canadian Protective Medical Association

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Common Mandates

Nature and severity of trauma/injuries

Mechanism of injury and disablement

Need for further diagnostic interventions

Diagnosis, impairment, activity limitation determination or clarification

Medical and surgical complications and misadventure

Appropriate standard of care

Causation, relationship and material contribution (e.g., of trauma to injury)

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Common Mandates

Reasonableness and necessity of medical, rehabilitative or surgical intervention

Supportive services needs

Medical stability and maximal medical improvement

Functional ability and/or work capacity

Health and safety risk

Fitness for duty and return to activities (work, caregiving, school, ADLs, housekeeping, etc.)

Medical restrictions and precautions

Needs for accommodations and modified work or activities

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Common Mandates

Medical and / or functional prognosis

Pain and suffering

Life expectancy

Quality of life

Future medical needs

Impairment rating

ICD-10 and ICF classification / codification

Apportionment

And several others

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Section 2. Referral, Mandate, Contract and Legal Framework

2.0 Referral Process

2.1 Who are the Referral Sources

2.2 Mandate or Letter of Instruction

2.3 Matching Qualifications and Mandate (How to Say NO!)

2.4 Experience and Economic Considerations

2.5 Conflicts of Interest and Time Frame



2.8 Contracts

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Section 2. Contract and Legal Framework



2.8 Contracts (Brokers and Confirmation Letter)

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Admin Forms & Letters

IME Confirmation Letter (Act as a Contract)

Set Fee, Fee Schedule, Transportation, Room Rental, Chaperone, Cancellation, No Show & Interests

Standard Appointment Letter

Evaluee Instruction Letter & Forms

Additional Documentation Request Letter

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Section 3. IME Administrative Aspects and Documentation Review

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Section 3. IME Admin Aspects

3.0 Administrative Principles

3.1 Referral Process (Section 2)

3.2 Evaluation Plan Development and Approval

3.3 Cross-Cultural Issues

3.4 Special Needs & Accommodation

3.5 Support Services

a) Administrative Services

b) Accounting

c) Clinical Services

d) Security

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3.6 Records Management and Privacy

a) Record Keeping

b) File Setup (Content, PrimaFact, File name, Temp File, emails, etc.)

c) Transcription

d) Editing

e) Identity Verification

f) Audio- and Videotaping Considerations

g) Privacy, Encryption and Cybersecurity

h) Insurance and Security Systems

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3.7 IME File Journal (Communication and Billing hours)

3.8 Information Technology and Security

3.8 Occupational Health & Safety

3.9 Violence, Intimidation and Bullying

3.10 Office Size and Administrative Staffing Needs

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Section 3a. Documentation Review

File Organization

FMD, Hospital, Clinic, AB, Tort, LTD, Experts, Disciplines, etc. …

Chronology (event and timeline mapping)

Assembling the Data (and tagging)

a) Documents Relevant to the Claim (& cross-reference)

b) Missing, Partial, Suspicious, and False Information

c) A Special Note Regarding Continuity

Timing of the Review (Prior, During and After)

Electronic File Management System

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Section 3a. Documentation Review

Paper Brief vs Electronic File

Source of Information Bias

Statement of Claim

Examination for Discovery Transcripts

Surveillance Review

Work Products:

Chronology (timelines) & Tag Index

Identification of Issues & Players

Doc Highlights & Needed Clarifications and/or Corroboration

Missing Documentation Request Letter

Determination of how complicated or “risky”

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ICE Documentation Review Procedures & Forms

Evaluation Plan (Cost Estimate)

File Set-Up, Content & Organization

Transcription & Forms

Additional Documentation Request Letter

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Section 4 Informed Consent and the Regulatory Frameworks

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Section 4. Informed Consent and the Regulatory Frameworks

5.1 Informed Consent Principles & Rules of Civil Procedures

5.2 Context, Parties, Nature, Purpose, Process, Cooperation

5.3 Consent to take picture

5.4 Report Ownership and Release + Corrections

5.5 Court Order

5.6 File Review and Request by Representative

5.7 Statutory Conflicts

5.8 Communication with lawyers

5.9 Example

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The Clinician as a Fiduciary

Clinician and “patient” relationship entails the highest

conceivable degree of trust and fidelity.

The clinician will act solely and entirely in the “patient’s best interest”.

The clinician will permit no competing interests including his/her own interest to interfere with or compete with the primacy of the “patient’s interest”.

The examinee or claimant is NOT a patient. The Fiduciary role of the IME clinician is not well defined.

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Seeking Patient’s Consent

The clinician must take steps to make sure that the patient has the information reasonably necessary to make an informed choice.

That the patient should be given such information and should provide his/her consent on that knowledgeable basis has come to be known as “informed consent”

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Autonomy

Autonomy means the patient’s moral right to make decisions about his/her medical care.

Respect for the person requires that clinicians favour a patient’s control of their own lives.

The patient’s consent must be sought for all examinations or procedures.

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Consent may be Expressed or Implied

Expressed consent is a specific and active affirmation by the patient that the clinician has permission to undertake the procedure proposed.

Consents given verbally are usually reduced to writing and signed by the patient or a person entitled by law to substitute for the patient.

The clinician asks for permission to provide a medical service and provides information to the patient about the risks and benefits.

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Consent is the activity that took place

When the patient has understood the information and received answers to any questions, the patient provides permission and consents to the treatment.

The patient signs the document.

It is the activity that took place which constitutes the consent, the paper merely records it.

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Implied Consent Rules of Civil Procedures

In some circumstances, the patient’s conduct may be taken to reasonably imply that consent took place.

The patient who comes to a clinician’s office, readily and willingly presents him/herself to the physician, gives his/her history and agrees to be examined will be taken to have consented to routine examination without having expressed that consent verbally or in writing.

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Scope of Consent

Consent to treatment extends only to what was

reasonably in the minds of the clinician and the patient when the consent was given

Consent given for one procedure/process does not necessarily cover another or different procedure.

Use of vague language in consents purporting to authorize any action the clinician considers advisable is legally risky

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Substituted Consent

Minors, those who have not achieved the age of majority, may not consent and thus consent for their treatment must be given by their parent or legal guardian.

Generally exceptions are provided to the rule requiring parental consent.

In most jurisdictions, parental consent is not required where the treatment proposed responds to a genuine emergency.

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Substituted Consent

In the case of adults suffering from diminished mental capacity, the intervention of others authorized by law to act as substitute decision-makers is required.

It is wise to consider the issue in respect of all psychiatric patients and where anything in the history or examination indicates the possibility of incapacity.

The substitute decision-maker will have all the rights to reasonable information that the patient would have enjoyed had they been competent

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CPSO Informed Consent

Physicians must obtain the patient’s or examinee’s

consent for disclosing personal health information to

the third party and for conducting a medical

examination. The College strongly advises physicians to document that consent has been obtained.

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CPSO Consent Disclosure of Information

The consent process will vary depending on the circumstances of each case, however, at minimum, physicians should ensure the following points are conveyed:

Patients or examinees can withdraw consent at any time, however, this will prevent the physician from completing and submitting the report;

Patients or examinees are entitled to place limits on the information that physicians can disclose in a report, however, such limitations may prevent physicians from proceeding with the reports process; and

Physicians have obligations to be truthful and accurate when detailing information in the report, and when forming a professional opinion about the patient’s or the examinee’s condition or functional abilities.

CPSO Third Party Reports Policy #2-12 - November 2012

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CPSO Consent Medical Information

Through the consent process, physicians should ensure patients

and examinees understand that the examination is being

conducted to prepare the report and should outline what the

examination will entail.

This includes an indication of what areas of the body will be

examined, what functional capabilities the physician will be

testing, and what types of questions the physician may have to

ask.

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CPSO Presence of Observers & Audio/Video Recording

The College is aware that parties may wish to have an

observer present during an examination, or may request

that the examination be recorded by audio or video

equipment.

If physicians are conducting an examination for the

purposes of a legal proceeding and one or more parties

wish to have an observer present, they should discuss the

matter with the lawyer involved, as specific rules may apply.

For example, for court-ordered examinations, the Rules of

Civil Procedure indicate that observers shall not be present during examinations unless the court orders otherwise.

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CPSO Presence of Observers & Audio/Video Recording

If the matter is not related to a legal proceeding, the College advises that although physicians are not obligated to conduct an examination in the presence of an observer or to record an examination, they are permitted to do so if they wish.

In these instances, any arrangements with respect to observers or recording must be mutually agreeable to the parties involved. Should the parties disagree over whether the examination will be recorded, or will be conducted in the presence of an observer, the College recommends that the examination be postponed until these matters can be discussed and a resolution reached.

CPSO Third Party Reports Policy #2-12 - November 2012

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Section 5 Health Claim Statement and Specialized Inquiry

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Section 5. Health Claim Statement and The Specialized Inquiry

5.0 Introduction to Civil Claim for Damages

5.1 Standard Argument Structure

5.2 Health Claim Statement

5.3 Health Claim Statement (Standard Format)

5.4 Underlying Tort Principles & Example

5.5 Functioning and Disability Revisited

5.6 Medical Taxonomy, ICD, ICF, CCI, Codes

5.7 The Specialized Inquiry

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Civil Claim for Damages Intro

Purpose

The purpose of a civil claim arising out of personal injury suffered as a result of an accident, clinical negligence or at work is to achieve financial compensation also known as “damages”.

Legal Basis of a Civil Claim (Statement of Claim)

In order to succeed in a personal injury claim, it is necessary to prove:

1. That the tortfeasor (defendant) is in breach of a duty of care owed to the claimant (plaintiff).

2. That the injury, loss or damages (more than minimal) has been caused as a result of the negligence or breach of duty or a term of contract.

3. The nature and extent of the injury, loss or damages sustained

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Civil Claim for Damages Concepts

Negligence

Negligence is the failure to take reasonable care to prevent foreseeable

injury to a person for whom there was a legal duty owed.

In the most frequently encountered personal injury claims such as MVAs and Slip and falls, the issue of breach of duty (liability) is not a matter for expert medical evidence. However, breach of duty is a matter central to the role of medical experts in clinical negligence claims.

Psychologists or psychiatrists may be asked to address the “reasonable foreseeability” arising from exposure of the claimant to particular situations or stressors. (Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114, 2008 SCC 27)

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Negligence, Civil Responsibility and Standard of Care

In jurisdictions subject to common law, four elements must be established or proven for any legal action based upon a claim for negligence to be successful:

1. There must be a duty of care owed to the patient.

2. There must be a breach of that duty of care.

3. The patient must have suffered some harm or injury.

4. The harm or injury must be directly related or caused by the breach of the duty of care.

CMPA Medical-legal Handbook for Physicians in Canada V. Sept 2016

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Causation

In all claims, the plaintiff must establish that the injury, loss and damage were caused by the negligence or breach of duty of the defendant.

Standard and Burden of Proof

In a civil case, the plaintiff must prove his case to the civil standard of proof, “on the balance of probabilities (probable or >50%).

Types of Damages

General Damages (Non Economic Loss or Non-Pecuniary)

(pain, suffering, disfigurement, loss of enjoyment of life / amenities & FLA)

Special Damages (future care cost, housekeeping, home maintenance)

o Economic or Pecuniary Loss (to date and in the future & employment disadvantages etc. )

Punitive Damages (rare)

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Medicolegal Challenge

Claimants do not always express their arguments clearly, often leaving some of the premises unstated, on the assumption that the evaluator will know what they have in mind or will not notice their reliance on faulty assumptions.

Evaluators do not systematically identify the claimant’s assertions or arguments, apparently not realizing that failing to closely examine the argument will have a strong negative impact on their ability to assess the claim at hand.

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An argument, by definition, consists of a conclusion which is drawn from a premise.

This is an argument that uses deductive logic.

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Health care is universal for Canadians. [Premise]

You are a Canadian.

Therefore, you have universal health care. [Conclusion]

5.1 Standard Argument Structure

Necessary and Sufficient Conditions

In order to evaluate an argument effectively you must be clear about the conclusion; that is, you must know what needs to be proven.

In order to make a diagnosis, a medical professional needs to know what diagnostic criteria must be present.

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Exacerbation vs Aggravation

Exacerbation

Temporary increase in the symptomology of a pre-existing condition (flare-up).

Aggravation

Long-standing effect due to an event, resulting in a worsening, hastening or deterioration of a pre-existing condition.

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The Health Claim Statement (HCS) is a technical tool that assists in outlining the major elements of the claim in dispute.

While the HCS itself has yet to be widely adopted, the majority of its components can be found in most IME reports in a less organized or complete fashion.

Hybrid between “Chief Complaints” in the clinical setting and the “Statement of Claim”. The Examination for Discovery can also be helpful to clarify the HCS.

5.2 HCS Process

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The HCS is formulated at the outset of the interview. It will guide in the development of the specialized inquiry needed to collect and analyze the data necessary to draw well-justified inferences.

The HCS obtained from the claimant is reconstructed into a causal argument format showing its temporal and logical structure within a tort medicolegal and scientific context.

Through this ordered approach, the evaluator can more accurately examine the validity and soundness of the argument and more accurately assess each element (premise) of the claim.

5.3 HCS Standard Form

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1. The plaintiff’s pre-existing health status did not cause or materially contribute to the accident itself (premise).

2. The plaintiff’s pre-existing health status is non-contributory to the personal injury, loss or damages (premise).

3. The defendant’s wrongful act contributed to or caused the accident (liability premise).

4. The accident materially contributed to or caused the plaintiff’s personal injury, loss or damages (proximal cause premise).

5. The plaintiff has made a reasonable attempt to minimize the personal injury or loss (premise).

6. There are no other causes for the accident and/or personal injury loss or damages (rebuttal premise).

7. But for the wrongful act of the defendant (accident), the plaintiff’s personal injury would not have occurred (conclusion).

5.4 HCS Tort Principles

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1. Status Quo Ante: This premise deals with the cause in fact of the accident and whether the plaintiff’s pre-existing health status, such as driving under the influence, caused or contributed to the accident itself.

2. Status Quo Ante, Thin Skull and Crumbling Skull: This premise has to do with the proximal cause and whether the plaintiff’s pre-existing health status has caused or contributed in some way to the personal injury.

3. Liability Issue and Cause in Fact: This legal premise addresses the key liability issue or cause in fact.

4. Proximal Cause: This premise has to do with the proximal cause and damages or whether the accident has materially contributed to or caused the plaintiff’s personal injury or loss. This is a central issue for the evaluator to address during causal analysis.

If there was a pre-existing health condition, the evaluator must determine if the accident led to an exacerbation (flare-up), aggravation (new injury or loss) or acceleration of the pre-existing health condition, or if the effects of the accident are unrelated.


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5. Mitigation of Loss Doctrine: This premise deals with the expectation that the plaintiff has taken reasonable steps to minimize his loss. In other words, the evaluator assesses the plaintiff’s participation in the medical and rehabilitation (medical and vocational) process.

6. Novus Actus Interveniens: There have been no intervening events (compensable or not) that would cause or contribute to the plaintiff’s personal injury. Causal apportionment becomes a consideration if two or more compensable events contribute to the plaintiff’s personal injury.

7. But For: “But for” comes from the Latin expression “Sublata causa, tollitur effectus”, meaning “remove the cause, and the effect will disappear”, or “but for this cause, that effect would not have resulted”. The “But for” singular causal argument conclusion needs to be analyzed on the basis of the previous premises.


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Mr. Jones reported no prior history of health problems, or prior health or disability insurance claims.

He stated that at the time of the August 8, 2016 MVA, he was in excellent physical and psycho-emotional health, and had no activity limitations or difficulties fulfilling all his social roles. Mr. Jones also denied any prior physical, mental or behavioural impairment [(1) Status Quo Ante, (2) Status Quo Ante, Thin Skull and Crumbling Skull].

Mr. Jones reported that Mr. Smith failed to stop for a red light at the time of the August 8, 2016 MVA. Mr. Jones stated that, but for Mr. Smith’s wrongful act, the August 8, 2016 MVA would not have occurred [(1) Status Quo Ante, (3) Liability Issue and Cause in Fact, (7) But For].

Mr. Jones indicated that solely as a result of the August 8, 2016 MVA, he experienced the following [(4) Proximal Cause]:

Left tibial plateau fracture with subsequent open reduction/internal fixation, external fixation and plates [(5) Mitigation of Loss Doctrine], resulting in left knee pain

Left tibia/fibula open fracture with subsequent open reduction/internal fixation, Ilizarov procedure and muscle flap and skin flap surgeries [(5) Mitigation of Loss Doctrine], resulting in left lower leg and shin pain

Right femur fracture with subsequent retrograde nailing and rod insertion [(5) Mitigation of Loss Doctrine] resulting in calcium scar build-up and right mid-thigh pain

Mr. Jones reported that he has been seeing Mr. Bob Williams, physiotherapist, since September 2016 and has been fully compliant with all treatment [(5) Mitigation of Loss Doctrine].

Mr. Jones denied any intervening accident, trauma, injury or disabling illness since the August 8, 2016 MVA. Mr. Jones indicated that the August 8, 2016 MVA was the only possible cause of his current health state, including his impairments, activity and social participation limitations [(6) Rebuttal Premise – Novus Actus Interveniens].

HCS Example

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Mr. Jones reported no prior history of health problems, or

prior health or disability insurance claims. He stated that at the time of the August 8, 2016 MVA, he was in excellent physical and psycho-emotional health, and had no activity limitations or difficulties fulfilling all his social roles. Mr. Jones also denied any prior physical, mental or behavioural impairment including any pain or sleeping difficulties. [(1) Status Quo Ante, (2) Status Quo Ante, Thin Skull and Crumbling Skull].

Mr. Jones reported that but for the August 8, 2016 MVA, he would not have sustained injuries or illness, activity limitations and social participation restrictions. [(1) Status Quo Ante, (3) Cause in Fact, (7) But For].

HCS Example

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Mr. Jones indicated that solely as a result of the August 8, 2016 MVA, he experienced the following [(4) Proximal Cause]:

Left tibial plateau fracture with subsequent open reduction/internal fixation, external fixation and plates [(5) Mitigation of Loss Doctrine], resulting in left knee pain

Left tibia/fibula open fracture with subsequent open reduction/internal fixation, Ilizarov procedure and muscle flap and skin flap surgeries [(5) Mitigation of Loss Doctrine], resulting in left lower leg and shin pain

Right femur fracture with subsequent retrograde nailing and rod insertion [(5) Mitigation of Loss Doctrine] resulting in calcium scar build-up and right mid-thigh pain

As a result of his MVA-related lower extremity impairment, Mr. Jones reported that he can no longer weight bear for more than 5 minutes or participate in housekeeping, home maintenance, social activities or work.

HCS Example

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Mr. Jones reported that he has been seeing Mr. Bob Williams, physiotherapist, since September 2016 and has been fully compliant with all treatment [(5) Mitigation of Loss Doctrine].

Mr. Jones denied any intervening accident, trauma, injury or disabling illness since the August 2016 MVA. [(6) Rebuttal Premise – Novus Actus Interveniens].

Mr. Jones reported that his injuries, impairments, activity and social participation limitations are all and only attributable to the August 8, 2016 MVA.

5.5 Functioning & Disability Revisited The ICF

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Causal Chain

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4.6 Medical Taxonomy, ICD, ICF, CCI Criteria and Codes

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5.7 The Specialized Inquiry

The Specialized Inquiry is the process by which data is collected in order to address the validity and soundness of each of the premises of the Health Claim Statement Causal Argument.

The Inquiry is done during the history taking (Pre-existing history, mechanism of injury and disablement, etc.) and under Current Complaints along with the documentary corroboration.

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Section 6 History Taking, Functional and Psychosocial Inquiry

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6.0 Introduction 6.1 Getting Started 6.0 Introduction (Interview Techniques & Order)

6.1 Getting Started

a) Environment & Context Matters

b) How to Start (The first 4 minutes)

c) Informed Consent (nature, purpose, process)

d) IME Process

e) Evaluator(s) and Claimant Role

f) Ownership of Report

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6.2 Background

6.2 Background

a) Identifying Data

b) Living Arrangements and Transportation

c) Occupation, Insurance and Income Status

d) Medical/Rehab/Attendant Care Status

e) Current Litigation, Dispute & Legal Representatives

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6.3 Health Claim Statement and 6.4 Pre-Existing Health Status


6.4 Pre-Existing Health Status

a) Prior Health and Disability Claims

b) Non-Compensated Health Conditions and Disabilities

c) Corroboration with Documentation

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6.5 History of Present Illness 6.5 History of Present Illness / Trauma

a) Date and Time

b) Location, Weather and Road Conditions

c) MVA Physics

d) Seatbelts, Headrests, Airbags and Helmets

e) Contributing Factors

f) Mechanism, Impact Description and Vehicle Damage

g) Immediately Recognized Personal Injury

h) Emergency Care at the Scene

(i) Immediate Care

j) Family Physician or Walk-In Clinic Visit

k) Hospital Emergency Room

l) Hospital Admission

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6.6 Diagnostic Investigation, Treatment Response & Evolution

6.6 Diagnostic Investigation, Treatment Response & Evolution

a) Outcome Determinants

b) Current Disability and Treatment Interventions

c) Treatment Interventions Wish List

d) Functional Outcome Measures

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Outcome Determinants

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6.7 Intervening Events and Co-Existing Conditions

6.7 Intervening Events and Co-Existing Conditions

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6.8 Current Complaints


a) Nature, Reality, Site and Extension

b) Pre-Existing Health State (New, Aggravation and Exacerbation) and Intervening Events

c) Temporal Factors (next slide)

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(c) Temporal Factors

i) Mode of Onset and Temporal Concordance

ii) Delay of Onset (Temporal Contiguity)

iii) Frequency and Duration

iv) Continuity

d) Mechanism of Injury and Disablement

e) Quality and Quantity

f) Worsening and Alleviating Factors.

g) Treatment Response

h) Associated Complaints

i) Evolution and Aggravation

j) Co-Existing and Intervening Events

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6.9 Current Medications

6.9 Current Medications

Formal/trade names

Dosing

Clinical indications

Prescriber (if pertinent)

History since event -recent changes

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6.10-6.12 Past Medical History, Family Medical History, System Review

6.10 Past Medical History

6.11 Family Medical History

6.12 System Review

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6.13 Psychosocial History

6.13 Psychosocial History

a) Social History

b) Education, Employment & Transferable Skills

c) Students and Caregivers

d)Recreation and Leisure Activities

e) Vocational Rehabilitation and Mitigation of Loss

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6.14 Functional Inquiry and Homemaking Activities

6.14 Functional Inquiry

a) Homemaking Activities

Functional Screen

Homemaking Screen

Pain Disability Questionnaire

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6.15 Claimant-Evaluator Documentation Review

6.15 Claimant-Evaluator Documentation Review

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Section 7 Observation, Physical Exam & Mental Status Examination

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7.0 Introduction & General Rules 7.0 Introduction

General Rules of Conduct

a) Introduction of Evaluator and Staff

b) Informed Consent

c) Time Allotment

d) Checklists and Examination Forms

e) Video/Audio/Photos

f) Interpreters and Chaperones

g) Observer Requests etc.

h) Attitude and Demeanor

i) Evaluator’s Specialty

j) Mandate Relevancy

k) Dressing

91

7.1-7.5 Context, Appearance, First Impressions, Behaviours & Mental Exam

7.1 Context: Room Set up, Process, Chaperone

7.2 General Appearance

7.3 First Impression

7.4 Evaluation Behaviours

7.5 Mental Examination

92

7.6 Inspection/Posture

7.6 Inspection/Posture

a) Posture

b) Attitude and Alignment

c) Deformities

d) Muscle Bulk and Contour

e) Colour and Swelling

f) Skin Manifestations

93

7.7 Range of Motion

7.7 Range of Motion

a) Observation

b) Comparison

c) Types of Testing

d) Measuring Instruments

e) Motions at Each Joint

f) Other Considerations: Impairment Rating Methodology

94

7.8 Neurological Examination

7.8 Neurological Examination

a) Muscle Bulk and Tone

b) Strength Testing

c) Sensory Testing

d) Deep Tendon Reflex Testing

e) Coordination & Transfers

95

7.9 Joint Stability & Laxity 7.10 Palpation

7.9 Joint Stability and Laxity a) Clinical Instability Tests

b) Documentation

7.10 Palpation a) Architecture

b) Temperature

c) Swelling

d) Muscle Features

e) Deformities

f) Tenderness and Trigger Points

96

7.11-7.16 Observation, Physical Exam

7.11 Clinical Investigations & Surveillance

7.12 Illustrations & Photographs

7.13 Normals and References

7.14 Reliability and Validity

7.15 Sensitivity and Specificity

7.16 Footnotes, Comments and Comparative Tables

97

7.17 Mental Status Exam 98

• Thought process

• Thought content

• Insight

• Judgment

• Impulsivity

• Reliability

• Appearance

• Attitude toward the examiner

• Mood

• Affect

• Speech

7.17 Contrasting DSM-IV and DSM-5 99

DSM-IV DSM-5

Major Diagnoses Disorders like Schizophrenia, BAD, MDD

Essentially the same definitions

Organization of Diagnoses 5 Axes system Merging of Psychiatric and Medical, no GAF

Number of Categories Fewer More (OCD, PTSD)

PTSD Loose definition Tighter – 4 baskets of symptoms

Substance Abuse, Dependence One disorder

Somatic Disorders Pain Disorder Somatic Symptom Disorder

Section 8 Data Analysis, Causal Analysis and Opinion Formulation

100

8.0 Introduction & 8.1 Data Analysis

8.0 Introduction

8.1 Data Analysis

a) The Claim

i) Letter of Instruction

ii) Health Claim Statement

iii) Data Collection

b) Bias Revisited

c) Evidence and Daubert

d) Analysis, Validation and Weighing

101

8.1(b) Bias Revisited

Bias can occur in any of the parties involved in the IME process, including requesting parties, lawyers, judges, etc., and can also be present in regulations and laws.

Even with the most careful and diligent data collection, bias as a part of the IME process may cause an evaluator to draw distorted, inaccurate, and even false conclusions.

Biases, generally speaking, are errors of flawed or selective data. Bias occurs when an evaluator, either unconsciously or deliberately, and with either the best or the worst of intentions, alters, overlooks, omits, promotes, or gives preference to certain data in order to support a pre-determined conclusion.

The evaluator should be aware of how bias in its many forms may influence the IME, and what, if anything, can be done about it.

102

8.1(c) Evidence and Daubert What is Evidence?

Why have rules of Evidence?

The role of the Law of Evidence

Sources of Evidence Law in Ontario

The Basic Rule of Evidence

Daubert Decision & Expert Testimony

103

What is Evidence?

Factual determinations are based on the examination and evaluation of the information or “evidence” that has been presented.

Evidence, therefore, is the data for factual decision making.

(Paciocco 1996)

104

Why have Rules of Evidence?

The rules perform a variety of functions, controlling what information the trier of fact can receive, how that information is to be presented, as well as the use that can be made of it.

Admissibility of evidence is a question of law.

105

Sources of Evidence Law in Ontario

Canada Evidence Act (Federal Courts)

Ontario Evidence Act (Provincial Courts)

Ontario Statutory Powers Procedure Act allows tribunals to admit as evidence and act upon any oral testimony or any document or other thing relevant to the subject matter of the proceedings, whether admissible as evidence or not in a court of law.

106

The Basic Rule of Evidence

Information can be admitted as evidence where it is relevant to a material issue in the case.

Evidence that is not directed at a matter in issue in the case is “immaterial”.

(Paciocco 1996)

107


US Federal Rules of Evidence Rule 702

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

108


The Daubert case addressed specifically the admissibility of “scientific” testimony which could be considered relevant and reliable. (How to deal with Junk Science!)

The Court has identified five “tests” to assist the trier of fact to determine the admissibility of scientific knowledge.

109

Daubert’s Five “Tests”

1) A key question to be answered is, ordinarily, whether the theory or technique can be and has been tested;

2) A pertinent consideration is whether the theory or technique has been subjected to peer review and publication, although the fact of publication, of lack thereof, in a peer reviewed journal is not a dispositive consideration;

3) The Court should ordinarily consider the known or potential rate of error of a particular scientific technique;

110


4) The assessment of reliability permits, but does not require, explicit identification of relevant scientific community and an express determination of a particular degree of acceptance of the theory or technique within that community, as

(a) widespread acceptance can be an important factor in ruling particular evidence admissible, and

(b) a known technique that has been able to attract only minimal support within the scientific community may properly be viewed with skepticism;

111


5) The inquiry is a flexible one, and the focus must be solely on principles and methodology, not on the conclusions that such principles and methodology generate.

112

Section 8 Data Analysis & Conclusion

113

8.2 Conclusion Formation


(a) Arguments and Fallacies

(i) General Considerations

(ii) Fallacies

Appeal to Authority

Appeal to Pity

Arguing in a Circle

Fallacies of Composition and Division

114

8.2 (a) Arguments and Fallacies

What is an argument?

Forms of Logic

Valid and invalid arguments

Sound and unsound arguments

Argument Analysis Basics

Necessary and sufficient conditions

Common Logical Fallacies

Legal / Medical Claim Statement

115

An argument, by definition, consists of a conclusion which is

drawn from a premise.

This is an argument that uses deductive logic.

Health care is universal for Canadians. [Premise] You are a Canadian. Therefore, you have universal health care. [Conclusion]

What is an Argument? 116

All psychiatrists are medical doctors. [Premise]

Dr. Smith is a psychiatrist.

Dr. Smith is a medical doctor. [Conclusion]

Deductive vs Inductive Logic

Deductive Arguments

Deductive logic works from first principles. The conclusion draws out implications contained in the premise.

The conclusion draws out implications contained in the

premise.

Forms of Logic 117

Forms of Logic

Mr. Jones has headaches every morning. [Premise]

It is now morning.

Mr. Jones will have a headache. [Conclusion]

Inductive arguments are projections that aremade on the basis of past experience.

118

Valid or Invalid Arguments

All claimants give an accurate medical history. [Premise]

Ms. Smith is a claimant.

Therefore, Ms. Smith gives an accurate medical history. [Conclusion]

This is a valid argument although it has a false premise.

Arguments are also classified as either being valid or invalid. Validity, however, says nothing about the truth of an argument.

119

Sound or Unsound Arguments

If the premise of an argument is true, and the argument is valid, then it is sound.

These are the types of arguments we should rely on in medicolegal analyses and writing.

An argument with either a false premise, or that is not valid is unsound.

120

Argument Analysis Basics

In general, in analyzing arguments, consider the following:

1. Identify the conclusion

2. Assess the truth of the premise

3. Decide on the validity of the conclusion

Again, a valid argument with a true premise is a sound one!

121

Common Logical Fallacies

Critical thinking also looks at common flaws in arguments, which are also called fallacies.

Let us now look at five common types of fallacies:

• Strawman

• Ad hominem

• Red herring

• Appeal to ignorance

• Appeal to tradition

122

Strawman Fallacy The strawman fallacy is committed when someone attacks a

position that is different (usually a weaker reconstruction) from, but similar to the original argument. By refuting the different version, the original argument is refuted. For example:

Many people think that the health care system does not need more money. If people would just stop worrying about every little ache and pain and putting so much stress on the health care system with trivial problems, we wouldn’t need more money. People need to get busy and get a life. There isn’t enough money to provide every diagnostic test for every patient.

123

Ad Hominem Fallacy

I’m fed up with Dr. Quack’s medical theories about fibromyalgia. I used to think that he had some valid ideas, but he’s just another crackpot who hasn’t done his homework. He talks a lot about patient care, but he’s just in it for the money.

In an ad hominem fallacy, the source of the argument is attacked, rather than the argument itself.

124

Red Herring Fallacy

I’m tired of those people who say that we need to put more money into emergency rooms. The real problem is, what are they going to do about the waiting lists for cancer treatment?

When one responds to a criticism of a position held by launching a counter-attack by raising a completely different issue, one commits the red herring fallacy. It is an attempt to take you away, so to speak, from the original argument.

125

The Appeal to Ignorance Fallacy

I believe that post-traumatic multiple sclerosis exists and I read current medical journals. No papers that I read disprove it. Therefore, it must be true.

Often in difficult medical diagnoses, the absence of any contrary evidence is used to support the original diagnoses. This may or may not be legitimate. Why?

This fallacy assumes in some mysterious way that the absence of evidence that something is false supports the claim that it is true.

126

Fallacy of Denying the Antecedent If p then q. Not- p therefore, not-q This type of argument is somewhat difficult to

determine from its legitimate form. Denying the

antecedent takes the following form:

Why is this faulty?

If Dr. X. knew that he had insulted Dr. Y. he would apologise. Dr. X. did not know that he had insulted Dr. Y. Therefore he did not apologise.

127

Appeal to tradition/ history

This fallacy assumes that because a view or position has been held for many years it is correct.

Since this treatment has been the traditional approach to depression, it must be right.

128


(b) Causation

(i) Correlation and Causation

(ii) Methods of Causal Analysis

(A) The Method of Difference

(B) The Method of Agreement

(C) The Joint Method of Agreement and Difference

(D) The Method of Concomitant Variation

(E) Limitations on Causal Analysis

129

8.2 (b)Causation

Introduction

Definitions

Medicolegal Report 4 Pillars

Standard Medical Claim Statement

The Traditional 9 Imputability Criteria

Forcier-Lacerte Integrated Medicolegal Causation Model

130

Introduction to Causation

Causation or the determination of a causal link is the most difficult medicolegal challenge.

It is usually poorly dealt with by the experts due to the lack of method.

The evaluation of a possible causal link and the determination of causation require a specialized inquiry.

Determination of medicolegal causation is the critical issue in liability.

131

Definitions

Causation is the relation of cause to effect.

To be legally sufficient, the physician’s opinion as to causation must be based on a “reasonable degree of medical certainty”.

Attribution is the process by which a cause(s) is / are assigned to an effect.

132

Medicolegal Report - 4 Pillars-

Facts - objective data

(Necessary and Sufficient)

Weight of Evidence

Causation

Considered Opinion

133

Medicolegal Analysis

Establish the claim statement and its supportive evidence

Use the 9 attribution criteria to assign and analyze possible causes (eg. differential diagnoses).

Develop a considered opinion on causation (based on probability).

134

Standard Medical Claim Statement

Premises (Since / Because)

Pre-Existing State

But for Causative Event

Proposed Mechanisms

Temporality

Altered State

Intervening Event(s)

Conclusion (Therefore)

Damages / Losses

135

PRE-EXISTING

STATE

MECHANISMS

TEMPORALITYOUTCOME

Determinants

©PFML2001

V.5.0

Forcier- Lacerte

Medicolegal Causation Model

"But For Test" or "Sine qua non"Sole Cause or Multicausal

Material Contribution (beyond de minimis)

Necessary & SufficientTortious or Non-Tortious

Environmental

Engineering

Human Factors

Administrative Controls

EVENT

(Cause)

Interv ening

EVENT

(Cause)

Ordering

Contiguity

Continuity

Trauma

Environmental ExposureInjury/disease/Illness

Impairment / Disability/Handicap

Developmental Stage

Cause-Effect Congruity

"Statu Quo Ante"Location

Nature

Severity

EpidemiologyComplications

Foreseeability & Risk

Stability/Evolution

Correlation

Noncontributory

Improving

ExacerbatingAggravating

Precipitating

Perpetuating

Maintaining

ComplicatingCompounding

Confounding

9 Attribution Criteria Internal / External

Consistency

Consensus

Distinctiveness

Illness (due to specific disease/ injury, severity and natural history)

Diagnostic Test (varying accuracy, sensitivity and specificity)MedRehab Treatment (varying efficacy, toxicity, iatrogenicity, complications)

Clinical Performance (varying degree of competence, motivation and barriers)

Environmental Factors (Sociocultural, Legal, Administrative and Accommodation)

Patient Compliance, Adapation and Adjustment (with treatment and advice)

Ev ent or Abstract (theory ) Construct

Objectiv e or Subjectiv e Ev idenceDichotomous or contiunous v ariable

Physics

Kinematics

BiomechanicsPathophysiology

Psychopathology

Sociocultural Environment

Ev ent

Causation

Can it occur?Does it occur?

Did it occur? (Logic and Scientific standard)

Standard Argument (Claim)

Reasonable Medical Certainty

& Causal Probability

"Thin or Crumbling Skull "Health & Functional State

Wellness & Life Style

Social Roles

Quality of Life

Risks & Vulnerability

"De Novo Interveniens "

"Mitigation-of-damages Doctrine"

"Standard of Care"Accreditation

LicensureCertif ication

Standards

Scope of Practice

Ethical and Clinical Practice Guidelines

Home

Work

School

Community

Legal / Administrative

Standard of Proof &Quality of Evidence

Pre-Existing

State

Intervening

Effect

Event Effect

136

The Traditional 9 Imputability Criteria

1. Reality

2. Nature of Altered State

3. Severity

4. Mechanism / Dynamics

5. Correlation of Site

6. Temporality

7. Continuity

8. Natural History

9. Pre-Existing Conditions & Intervening Events

137

1. Reality

Establish and corroborate Facts

motto: “trust but verify”

Requires accuracy and sufficiency

Wrong facts = Wrong inferences

Are those all the Facts?

All the facts ( not just selected ones)

Necessary and Sufficient

138

2. Nature of Altered State

Region / Organ

Level of diagnostic certainty

Injury /disease, impairment, disability and Handicap

Other characteristics :

Maximum medical recovery

Maximum medical improvement

Maximum functional level

Temporary / Permanent

Percentage of whole body impairment

Partial or total Disability

Stable or expected improvement or deterioration

139

3. Severity

Positive correlation between severity of the injuries/disease and the sequelae.

There must be a relative dose-response relationship and in proportion between cause and effect.

140

4. Mechanism / Dynamics

Can it occur? - Plausibility

Does it occur? - Literature

Did it occur? - Are Criteria in this case

Physics

Kinematics

Biomechanics

Pathophysiology

Psycho-pathology

Psychosocial impact

141

5. Correlation of Sites

Establish the link between:

Trauma site

injury site / organ

Impairment

Disability (activity limitations)

Handicap (roles and participation)

142

6. Temporality

Delay of Onset

Continuity

Ordering & Contiguity

Diagnosis and treatment response

Temporality is an element of the pathophysiology

143

7. Continuity

A state of being continuous, an unbroken succession of a logical sequence.

Needs to demonstrate that the presence of the effects of the condition (loss) have persisted over time.

144

8. Natural History / Epidemiological Factors

Correlation of symptomatology, clinical signs and evolution of the condition:

Healing

Complications

Impairment / disability

Rehabilitation response

145

9. Pre-Existing Conditions & Intervening Events

Pre-Existing Conditions

Intervening Events (Novus actus interveniens)

Aggravation vs Exacerbation

Risk Factors

Seriousness of Risk

146

Causality Criteria

Pre-existing / intervening conditions

Mechanism of injury and condition

Trauma evidence, reality, intensity, severity

Correlation of Sites

Delay of Onset

Continuity

Diagnosis certainly level & probability Can it occur? Plausibility

Does it occur? Literature

Did it occur? Factual

Natural history of the condition

147

PRE-EXISTING

STATE

MECHANISMS

TEMPORALITYOUTCOME

Determinants

©PFML2001

V.5.0

Forcier- Lacerte

Medicolegal Causation Model

"But For Test" or "Sine qua non"Sole Cause or Multicausal

Material Contribution (beyond de minimis)

Necessary & SufficientTortious or Non-Tortious

Environmental

Engineering

Human Factors

Administrative Controls

EVENT

(Cause)

Interv ening

EVENT

(Cause)

Ordering

Contiguity

Continuity

Trauma

Environmental ExposureInjury/disease/Illness

Impairment / Disability/Handicap

Developmental Stage

Cause-Effect Congruity

"Statu Quo Ante"Location

Nature

Severity

EpidemiologyComplications

Foreseeability & Risk

Stability/Evolution

Correlation

Noncontributory

Improving

ExacerbatingAggravating

Precipitating

Perpetuating

Maintaining

ComplicatingCompounding

Confounding

9 Attribution Criteria Internal / External

Consistency

Consensus

Distinctiveness

Illness (due to specific disease/ injury, severity and natural history)

Diagnostic Test (varying accuracy, sensitivity and specificity)MedRehab Treatment (varying efficacy, toxicity, iatrogenicity, complications)

Clinical Performance (varying degree of competence, motivation and barriers)

Environmental Factors (Sociocultural, Legal, Administrative and Accommodation)

Patient Compliance, Adapation and Adjustment (with treatment and advice)

Ev ent or Abstract (theory ) Construct

Objectiv e or Subjectiv e Ev idenceDichotomous or contiunous v ariable

Physics

Kinematics

BiomechanicsPathophysiology

Psychopathology

Sociocultural Environment

Ev ent

Causation

Can it occur?Does it occur?

Did it occur? (Logic and Scientific standard)

Standard Argument (Claim)

Reasonable Medical Certainty

& Causal Probability

"Thin or Crumbling Skull "Health & Functional State

Wellness & Life Style

Social Roles

Quality of Life

Risks & Vulnerability

"De Novo Interveniens "

"Mitigation-of-damages Doctrine"

"Standard of Care"Accreditation

LicensureCertif ication

Standards

Scope of Practice

Ethical and Clinical Practice Guidelines

Home

Work

School

Community

Legal / Administrative

Standard of Proof &Quality of Evidence

Pre-Existing

State

Intervening

Effect

Event Effect

Bradford Hill

In 1965, Sir Austin Bradford Hill made a major contribution to the newly founded Section of Occupation-al Medicine of the Society of Epidemiology with his classic paper:

The Environment and Disease: Association or Causation?

Dr. Hill set forth 9 guidelines that should be considered in establishing the relationship between environmental exposure and effect.

Bradford Hill’s 9 Guidelines

1. Strength

2. Consistency

3. Specificity

4. Temporality

5. Biological Gradient

6. Plausibility

7. Coherence

8. Experiment

9. Analogy

Work Relatedness

NIOSH Musculoskeletal Disorders and Workplace Factors: A Critical Review of Epidemiologic Evidence for Work-Related Musculoskeletal Disorders of the Neck. Upper Extremity and Low Back

http://www.cdc.gov/niosh/homepage.html

DHHS(NIOSH) Publication No. 97-141

http://www.cdc.gov/niosh/homepage.htmlhttp://www.cdc.gov/niosh/homepage.html


(iii) Causal Fallacies

(A) Confusing Necessary and Sufficient Conditions

(B) Causal Oversimplification

(C) Confusing Cause and Effect

(D) Neglect of a Common Cause

(E) False Cause (post hoc ergo propter hoc)

(iv) Outcome Determinants

152

8.2 (b)(iii)(A)Causal Fallacies - Confusing Necessary and Sufficient Conditions In order to evaluate an argument effectively you must be

clear about the conclusion; that is, you must know what needs to be proven.

In order to make a diagnosis, a medical professional needs to know what diagnostic criteria must be present.

153

For example, in order to diagnose mental retardation three conditions must be present:

1. Significantly subaverage intellectual functioning (an IQ of approximately 70 or below).

2. Concurrent deficits or impairments in present adaptive functioning in at least two areas.

3. Onset before age 18 years.

154

In some instances there may be diagnostic criteria that are sufficient on their own.

In the case of a diagnosis of WAD Grade I, three criteria are listed: complaint of neck pain or stiffness or tenderness.

Each one of these criteria by itself is a sufficient condition to diagnose a WAD Grade I.

155

If we finish this file by Friday, we’ll go to the beach.

If the Oilers hadn’t traded Wayne Gretzky, they would have continued to be a Stanley Cup winning team.

In daily life we make statements using the concept of necessary and sufficient conditions:

In these statements we are making claims about sufficient conditions: finishing the file is a sufficient condition for going to the beach; Wayne Gretzky playing for the Oilers is a sufficient condition for winning the Stanley Cup.

156

We would go to Toronto only if someone else drove us there.

We would buy mutual funds only if they were ethical mutual funds.

We also make statements about necessary conditions:

In these cases we are claiming that someone driving us is a necessary condition for us to go to Toronto and that a mutual fund being ethical is a necessary condition for purchase.

157

Sometimes you want to affirm a particularly strong relationship.

If the only way you can develop a disease is by being bitten by a certain insect, and if the bite of this insect always causes this disease, then the bite of the insect is a necessary and sufficient condition for the disease.

158

8.3 Report Writing

8.3 Report Writing

159

Evidence-Based Analysis 160

What is Evidence-Based Medicine?

EBM is the conscientious, explicit and judicious use of current best evidence in making decisions about the care of individual patients.2

EBM originated at McMaster (Ontario) in 1992 by a group led by Dr. Gordon Guyatt.

2 Sackett DL, BMJ 1996; 312: 71-2

EBM: Four Realizations3

Daily need for valid information about diagnosis, prognosis, therapy and prevention (up to 5 times per in-patient and twice for every 3 out-patients).

Inadequacy of traditional sources for this information because they are out-of-date (textbooks), frequently wrong (experts), ineffective (didactic continuing medical education) or too overwhelming in their volume and too variable in their validity for practical clinical use (medical journals).

The disparity between our diagnostic skills and clinical judgement, which increase with experience, and our up-to-date knowledge and clinical performance, which decline.

Our inability to afford more than a few seconds per patient for finding and assimilating this evidence, or to set aside more than half an hour per week for general reading and study.

3 Evidence-based Medicine: How to Practice and Teach EBM Straus et al. 3rd Ed. Churchill

Livingstone, 2005 p.2

What Makes EBM Possible Now

The creation of systematic reviews and concise summaries of the effects of health care (e.g. Cochrane Collaboration).

The creation of evidence-based journals of secondary publication (that publish the 2% of clinical articles that are both valid and of immediate clinical use).

Information systems that bring readily useable and valid information in a matter of seconds. You no longer need to be an academic to “appear” smart.

Logic and Clinical Judgment

Science in medicine is about producing evidence.

Logic and critical thinking is about rational uses of evidence.

Complete and methodologically impeccable evidence about a health problem is not enough to make valid and valuable choices.

If the interpretation of the evidence is not logically sound or used uncritically, the patient may be harmed. The patient may equally harmed by logically flawless use of poor or poorly evaluated evidence.

Evidence-based practice: logic and critical thinking in medicine.

M. Jenicek and DL Hichcock AMA press 2005

Scientific vs. Legal Evidence

While clinicians and lawyers may use the same word “evidence”, their understanding and application of evidence are quite different, leaving the patient/claimant with medical needs caught in the middle.

In contrast to EBM, the search for truth in law is an adversarial one. The theory is that if both sides make the best case for their position, the truth will emerge from the evidence that is presented.

In order to win, lawyers recruit “experts” that will make the best case for their position. Eminence-based and opinion-based evidence prevails. In this forum, “Credibility” , “believability” and rhetoric win over weighing scientific facts, validity and relevancy.

Scientific vs. Legal Evidence

In health care, evidence helps to determine the likelihood that an event in the future will be beneficial to the patient.

In law, evidence is used to determine the causation of an event in the past to determine who was accountable for it and who was harmed by it.

PUTTING IT ALL TOGETHER – SPINS, SNOUTS AND EBM

A B

C D

Test positive

Disease Absent

Disease present

Test negative

A = True positive B = False positive C = False negative D = True negative

Sensitivity = A/[A+C] Specificity = D/[B+D] PPV = A/[A+B] NPV = D/[C+D]

Section 9 Medicolegal Report Writing, Format, Style, Bias and Tone

168

Medicolegal Report Writing

9.1 Format, Style, Bias and Tone

9.2 Word reference and meaning

9.3 Medicalization and misuse of lawyerisms

9.4 Ambiguity and vagueness

9.5 Words best avoided

9.6 The “Fantastic 4” adjectives to use

9.7 Rhetorical power of words

9.8 Medio-Legal Society of Toronto Report Checklist

169

9.1 Medicolegal Report Format

Introduction

Date Seen (Nature of evaluation)

Mandate (Purpose of referral)

Documentation Reviewed

Medical Claim Statement

Pre-Existing Health State

History of Present Illness

Current Complaints & Interventions

Past Medical History

170


Allergies Current (and past) medications for condition

Psychosocial history

Family history

Educational history

Military history

Legal history

Vocational history

Observation & Examination

Psycho-emotional Evaluation & Testing

171


Mental Status Examination

Functional Ability Evaluation

Surveillance Review

Diagnoses (ICD-10CA, DSM-IV, ICIDH-2)

MMR & MMI Status and Prognosis

Causality and Apportionment

Vocational Status/Prognosis

Conclusion and Recommendations

172

9.2 Word Reference and Meaning

Words

“The smallest units of meaningful, natural language are words. Technicalities aside, it is important to see that we normally distinguish two aspects of meaningful words: what sort of things they are about (what they refer to), and what their cognitive significance is (what they mean).” (Savellos and Galvin)

173


Reference

“Reference is a relation that [holds] between expressions and [the things] speakers use expressions to talk about. When I assert ‘George W. Bush is Republican’, I use the proper name ‘George W. Bush’ to refer to a particular individual …” (http://plato.Stanford.edu/entries/references/)

174


Meaning: Semantics vs. Pragmatics

“When a diplomat says yes, he means ‘perhaps’; “When he says perhaps, he means ‘no’; “When he says no, he is not a diplomat.”

175


Meaning: Semantics vs. Pragmatics

“… more is involved in what one means than the standard, conventional meaning of the words one uses. … each [word] has a perfectly identifiable meaning, known by every speaker of English …. However, as those [previous] lines illustrate, it is possible for different speakers in different circumstances to mean different things using … words.” (http://plato.stanford.edu/entries/pragmatics/)

176

9.2 Word Reference and Meaning EXAMPLE

Impairment

“the impairment”

Refers to a precise limitation in a particular body function, such as 10° reduction in flexibility

177


Impairment

“an impairment”

Meaning (semantic): “problems in body function or structure such as a significant deviation or loss.” (http://www.who.int/classifications/icf/site/intros/ICF-Eng-Intro.pdf)

178


Impairment

Meaning (pragmatic): depends on who says it, when they say it, and what exactly they say!

179

9.3 Medicalization and Misuse of Lawyerisms

EXAMPLE

Material contribution vs causation

Tort definition: permanent serious impairment of an important physical, mental or psychological function.

The need to go back to a medical and scientific framework

180

9.4 Ambiguity and Vagueness

Ambiguity: A word is ambiguously used in a given context when that context does not make it clear which of the several meanings of the word is intended.

EXAMPLE: “Mr. Smith sustained what looks like a right tibial fracture.”

Has a right tibial fracture been observed? Or does Mr. Smith’s injury just appear to be one?

181

9.4 Ambiguity and Vagueness

Vagueness: A word is vague when there is a “gray area” of applicability of the word, i.e., there are borderline cases in which it is not whether or not the word can be correctly applied.

EXAMPLE: “Mr. Jones experiences severe pain.”

How much pain is “severe”? What kind of pain is “severe”?

Terms like significant, substantial, complete, severe should only be used if the grading is from an objective, generally-accepted scale and set of definitions

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9.5 Words Best Avoided

Nouns

Hypothesis

Gut feeling

Impression

Intuition

Educated guess

Hunch

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Adjectives:

Uncertain

Improbable

Possible

Likely and unlikely

Plausible and implausible

Reasonable and unreasonable

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Adjectives (cont’d)

Acceptable and unacceptable

Equitable

Conceivable

Compatible

Consistent with

Suggestive of

Higher than expected

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Verbs

It…

• Appears

• Seems

• Looks like

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Verbs (cont’d)

I…

Believe

Understand

Think

Honestly think

Suspect

Suppose

Presume

Imagine

Find that

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Phrases:

It’s my firm opinion…

In all likelihood…

Strong words watered down by adverb

• rather catastrophic

• slightly hysterical

Weak words intensified by adverb

• very, very angry

• quite puzzling

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9.6 The “Fantastic 4” Adjectives

1. Impossible

0% probability

2. Not probable

More than 0%, but less than 50%

3. Probable

More than 50%, but less than 100%

4. Certain

100% probability

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9.7 Rhetorical Power of Words

Ad captandum vulgus (Latin, “to win over the crowd”)

Often an unsound, specious argument

However…

Even sound, non-specious arguments may not persuade

Good medicolegal arguments should also be persuasive

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9.7 Rhetorical Power of Words EXAMPLE

Less persuasive:

“The Desbiens decision does not respect the intent of Chapter 14, page 301 of the Guides with respect to the lack of percentages used in the 4th edition. Whether the specifics of the Desbiens decision are applicable to Mr. Jones is a legal matter. Dr. Smith’s legal opinion thus has no basis.”

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9.7 Rhetorical Power of Words EXAMPLE

More persuasive:

“Unfortunately, Dr. Smith did not indicate in his report that the Desbiens decision does not respect the intent of Chapter 14, page 301 of the Guides with respect to the lack of percentages used in the 4th edition. Moreover, it is my opinion that whether the specifics of the Desbiens decision are applicable to Mr. Jones is a legal matter best addressed by the trier of fact. I am thus perplexed as to the basis of the legal opinion offered by Dr. Smith.”

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9.8 Medico-Legal Society of Toronto Report Checklist

The physician’s qualifications

The patient’s name

The date, place and reason for the examination

The history and symptoms related by the patient

Where know and relevant, a statement of a patient’s previous health

The physician’s findings which do (or do not) corroborate each of the items of complaint, or which indicate the results of an injury which has not been noticed.

The physician’s diagnosis of each symptom complained of (and any other symptoms).

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9.8 Medico-Legal Society of Toronto Report Checklist

The treatment

The degree of disability at the time of examination

The prognosis

The causal connection(s) between the incident and the patient’s complaints, which includes a professional opinion on the precipitating factor or “cause” of the condition.

The court must know if the injury or condition for which damages are claimed was probably caused, aggravated or accelerated by the events complained about. (Contribution beyond de minimis)

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Assessment chart of medical appraisal

A) Purpose of appraisal and questions asked: 0-5 points

B) Past history: 5 points

1) Life style and related history

2) Facts, corroborated by documented evidence

. symptomatology of individual appraised

. description of accident or occurrence:

chronology, intensity and delay in outbreak

. development mechanism of sickness or injury

. progression of sickness or injury

. medical or therapeutic follow-up; examination results

C) Physical or mental examination: 5 points

. Complete detailed examination (area, system, organ)

. Precise description of limitations and consequences

including objective information allowing to

determine extent

D) Discussion: 6 points

. Precision of diagnosis and discussion of facts

. Respect of responsibility criteria

. Basis for conclusions, objective information based on evidence

of probability (notions generally recognized by scientific community)

E) Answer to questions and recommendations: 5 points

. Clear answers, in conformity with statements and discussions

. Conformity to law and regulations (standards) involved

. Answer to all questions

. Need for additional intervention or investigation

F) Other: 3.5 points

. Respect of specialty

. Refrainment from inappropriate comments

. No conflict of interest

. Quality (structure, clarity, syntax, neatness, signature)

. Delay in producing report

Total 25 points

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Current Industry Issues: IME Process

1. Attendees and special provisions at the evaluation:

Family members, friends, therapists etc.

Chaperones

Clinical assistants

Translators, readers, special transportation needs, other unique accommodation …

All such requests and should be documented and reviewed by stakeholders in advance

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2. Consent forms:

Different referral settings (tort, AB, workers comp, court-mandated IE’s)

Edits, revisions and demands from legal counsel

Interface with College guidelines and tort/arbitration guidelines and legislation

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3. Report Writing/editing:

Records retention

Review of file materials

Handwritten notes, drafts, emails etc.

Working with QA teams, legal counsel/referring parties

Addendums, paper reviews and rebuttals

Scope of practice and working with a multidisciplinary team

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Current Industry Issues: Post-Assessment

4. Trial/Arbitration Hearings and Requests for Records:

Logistical coordination of schedules, fees, cancellation policies

Level of disclosure required/expected

Trial prep and further review of materials

CMPA/Professional protection and a framework for common lines of questioning

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