Presented by R. Brian Webster
Webster & Associates, Vancouver, BC, Canada
Co-authors: Natalie A. Foley, LL.B., Daniel F. Corrin, LL.B.

Presentation Audience:

• Rehabilitation professionals
• Medical legal experts
• Doctors
• Lawyers
• TBI Survivors and Family

Introduction
This presentation is made from the perspective of a Canadian lawyer who litigates traumatic brain injury cases for plaintiffs.

This presentation identifies concern, ideas and solutions from our experience litigating and advocating for traumatic brain injury survivors internationally. Brain injury litigation in all tort jurisdictions in Canada is adversarial. (Attached as Appendix A is paper on the rule for drafting expert testimony to comply with the British Columbia rules governing expert opinion and its admissibility in Court).

This presentation identifies some of the consequences of expert and consultant recommendations which may harm the search for truth and the goal of securing proper funding, care and compensation for the tbi survivor. This paper is intended to increase awareness of some of the pitfalls/dangers and suggest ways of strengthening opinions to ensure they meet the intended goals while avoiding unintended consequences. Written opinion recommendations are routinely made by treating and retained experts both in the treatment and litigation context. These opinions and recommendations are used to secure access to funding for treatment and rehabilitation (in the consultative or treatment process) and to prove the need for this funding in the future for cost of care compensation (in the medical legal context.)

In considering how we can make these opinions and recommendations help but not hinder our clients, the following will be discussed.

1) The problem of recommendations made not followed
2) Considerations to make prior to the making of the recommendation

a. Timing
b. Feasibility
c. Funding

3) Strengthening the expert opinion/consultation by preparing for inevitable counter-arguments

a. Stay within scope of expertise and experience
b. Know the right tests to meet
c. Consider who else will read your opinion
d. Make the facts and assumptions clear
e. Test the reliability of self-reports
f. Distinguish probabilities from possibilities
g. Be aware of false positives
h. Beware, the “stress of the litigation” argument

4) Conclusion

1) The Problem of Recommendations Made Not Followed

The intended consequence of making the recommendations is to:

a. Improve condition of client
b. Secure funding for further rehabilitation
c. Prove legal case (diagnosis, prognoses, future care needs, etc.)
d. Be accurate and fair

However, recommendations can do more harm than good if they are made and not followed. The impact of failure of the plaintiff to follow through can have direct financial consequences in the compensation arena and may also affect the ability to secure rehabilitation funding in the future. The failure to follow through may lead to negative inferences by the court, insurance company or rehabilitation funding provider/agency. Decision makers may assume:

• unwillingness to try to get better
• malingering
• secondary gain
• failure to mitigate in legal terms

These are usually not the reasons brain injury survivors may not follow through. Reasons may include: outcomes, timing, feasibility, funding. It is suggested that experts take a moment to consider these prior to making a recommendation.

2) Considerations to Make Prior to the Making of the Recommendation

 

A. Timing

Whether or not there is litigation, the timing and feasibility of recommendations may be significant to the goals of securing funding for treatment and proving the legal case. It is necessary to consider if recommendations can be implemented within the time frame available.

Rehabilitation can be a life long process. In litigation, there may be fixed dates. If recommendations are made and not followed through prior to those dates, it can be seen as a failure to mitigate.

Some recommendations may open a new area that further complicates the medical picture, but only adds marginally to the diagnoses. It may be worth trying, however if the treatment is time consuming and the likelihood of slight improvement low, consider whether the making of the recommendation should be postponed, specifying the improbability of success, or the potential functional improvement.

B. Feasibility

Some recommendations may not be feasible during litigation. A recommendation to attend a pain clinic for example may be problematic because physicians may refuse to administer certain pain treatments or perform certain assessments prior to settlement. If this is recommended and not completed assumptions will be made adverse to the traumatic brain injury survivor. For example, the defendants will argue that the pain clinic will remove the pain resulting in a return to pre-morbid functioning, whereas the recommendation was really made to help the injured person cope with the pain. A defendant will not pay compensation for an injury when recommended treatment has not been tried.

A common example in the brain injury context concerns the “tiers of medication” often prescribed. For example, it may be the survivor is recommended to try various medications for sleep and fatigue problems as follows: 1) sleep related medications (Trazadone, Melatonin); then try 2) anti-depressants (Celexa); then try 3) neurostimulants (Ritalin etc.). These medication trials can take months, if not years, and may not give answers or result in significant improvement in the plaintiff’s condition. Trials of stimulants, sleeping medications, and anti-depressants may be suggested in “tiers” and just left hanging for others to sort out. In the litigation context, parties must have an end in sight. Unless the recommendations may achieve significant changes in function or quality of life, and/or prove a need for funding, the reason for the recommendation should be noted or left until a later date. And if made, the recommendations must be couched in predictions for success. “What can we expect to see in 6-12 months?” This comment is not only directed to medication trials but equally applies to other recommendations including: trial return to work; independent living trials; physical therapies including exercise programs, muscle stimulation therapies; a new approach to psychological, cognitive, vocational or other counselling or the current approach with a new counsellor, as examples.

Implementation considerations must be stated. Is a team required? Does it exist? In cases of moderate and severe brain injury, many recommendations will require the help of others. Is the proper specialist available to administer the treatment or strategy in a timely fashion? Will family help be needed, and is it feasible to expect family participation?

It is important to consider the availability of these necessary supports before making a recommendation, to avoid the situation where follow through is not feasible. If a wife is expected to chauffeur her husband daily to treatments, include that assumption in the recommendation.

C. Funding: Who Will Pay?

If adequate funding is not available, and as a result the recommendation is not fulfilled, the survivor may still be penalized. Will funding be available? Sources of funding vary and may include:

• Government
• Private/Family
• Insurance Company
• Lawyer

Botulinum (“Botox”) injections is an example. Recommendations to try these injections for spasticity must consider funding, a description of what “success” will look like, and the probabilities of success. Botox is expensive, few funders will pay, but readers may assume it works miracles.

3) Strengthening the expert opinion/consultation by preparing to meet inevitable counter-arguments

Recommendations will often be read with a critical eye before a decision to fund/implement the recommendation is made. In the case of litigation it may be the critical eye of an opposing expert, or judge. The following suggestions are useful whether litigation is involved or not.

A) Stay within the Scope of Expertise

In litigation, an expert is someone who has special knowledge that may assist the court in making decisions upon the facts.

” It is thought that in some cases expert evidence is simply evidence of a fact which cannot be received by an untrained person. An expert who looks through a microscope and identifies a bacteria cell is perceiving a fact no less than the man who sees a robbery committed under his eyes. The difference is only that the expert is conversant with microscopes and microbes.” J.H. Buzzard, R. May, M.N. Howard, Phipson on Evidence (London: Sweet & Maxwell, 1976).

Often in the litigation context there is overlap in expertise. Accurately confirming and possibly defining the scope of your expertise in a written opinion will assist your audience understand why comments should be accepted.

While the rules may be more strictly defined in the case of litigation, a statement of qualifications may lend further support for recommendations made outside the litigation arena. This is not the time for modesty. A clear example of overstepping scope we see frequently is a physician opining on competitive employability or a vocational consultant saying an individual did or did not suffer a traumatic brain injury.

An interesting example of expert opinion overlap is illustrated by the case of the severely traumatically brain injured mother who could not recognize the faces of her children. Each expert rushed to diagnosis and usually blamed the mother.

Psychiatry – malingering/conversion disorder
Psychology – conversion disorder
Occupational Therapy – malingering, secondary gain
General Physician – ignore
Neuropsychologist – prosopagnosia
Neurologists – subsequently all agreed prosopagnosia

B) Know the Legal or Other Threshold Test You Need to Meet

In the legal context, it is essential that the expert know the legal test for his or her area of expertise, as the application of the test to the expert opinion and recommendations will be debated in negotiations throughout the litigation and possibly at trial before the court.

For example, in Canada the “ample means” test is utilized in determining what future cost of care items should be awarded. In the recent case of Mitchell v. We Care Health Services Inc. et al. 2004 BCSC 902 litigated by Webster & Associates, the court followed the test in Brennan v. Singh, [1999] B.C.J. No. 520 (S.C.), per Harvey J., as follows:

In an historical perspective & #8230; the test for the standard of care generally is whether a reasonably-minded person of ample means would be ready to incur the expense. When measuring reasonableness, the expense should not be a squandering of money.

This is very different from a test of medical necessity (is a recommendation medically necessary?), or other less generous examples when a government or other public body is administering so-called “scarce resources.” It is a subjective test. For example, Mrs. Smith is asking for more hours of care than your “average” quadriplegic, but she needs it and is entitled to it.

C) Consider Your Target Audience; Who Else Will Read Your Expert Opinion or Consultation?

An expert/consultant should also be mindful of the unintended audience. Opinions are routinely disclosed and disseminated far and wide. When a consultation is written with a view to securing specific funding the author may not include certain treatments or programs for which there is no known funding. This omission, when read in the litigation context or otherwise, may be interpreted as evidence that other recommendations are not warranted. So if no counselling is recommended because there is no known funding available for clinical counselling, that omission itself may be taken as adverse. Adverse inferences may ensue unless the assumptions are clear.

D) Make the Facts and Assumptions Clear

In Canada the law requires experts to clearly identify and outline the facts and assumptions underlying their report. However, in any opinion, written or oral, accuracy of the facts and assumptions underlying that opinion will affect the strength of the opinion and recommendations contained therein. In our experience there is a tendency to recite historical facts unnecessarily but to skip over salient facts or the basis for belief in them.

We often see a survivor quoted when he describes the events of an incident. The implication is that the ability provide such a detailed description is inconsistent with the alleged injury. But the expert never mentions that this is simply the information which has been repeatedly provided to the survivors by others, and now adopted by him.

E) Are the Collateral Interviews, Hearsay and Self-reports Reliable?

When relying on hearsay evidence, as a foundation for an opinion, the opinion is only as strong as the hearsay information itself. If the cost of care expert relies on a doctor’s diagnoses as a factual underpinning to the opinion, that doctor’s opinion must be admitted into evidence and accepted by the court. In court, it is counsel’s job to ensure the factual underpinnings are proven to support the care recommendations. It is no less important outside litigation where the expert must take that responsibility.

The Canadian case of in Anderson (Guardian ad litem of) v. Bicknell [1998] B.C.J. No. 1847 at para 90 illustrates this point:

Mr. Justice Meredith expressed concerns about the expert’s reliance on self-assessment by the plaintiff. I find that his concerns are not dissimilar to mine. The reflections from this senior judge confirm in my mind that there is merit in adopting a test of “performance”, that objective evidence must be carefully considered relative to self-assessment evidence and that the reliance by experts upon such assessments and upon untested collateral evidence must be weighed with caution.

F) Distinguishing Probabilities and Possibilities May Give an Opinion Additional Clarity

In the legal context, “probability” usually refers to the civil burden of proof. Often described as “more often than not”, or as having at least a “51% chance” of occurring. Where proved that an event is “probable” courts will usually compensate on the basis that the event will occur.

Possibilities are usually considered on the basis of the chance or percent likelihood (less than 50%) of an event happening. For example, it was possible the plaintiff would have been an all star football player but the chance was only 5%. Possibilities are usually compensated on the basis of the percentage chance of the event occurring.

Clear statements of possibility help everyone when they can be given, especially if they can be defined mathematically.

G) Be Aware of False Positives

A person may be pronounced employable (or not). The financial consequences can obviously be significant. This is particularly so with statements of a “false positive”. For example, the plaintiff is given a placement and stays for six months and is pronounced competitively employable. In fact the job is then lost and no other successful employment ever occurs. The plaintiff has no damages for loss of future employment and no wages from employment. This results in tragic under-compensation. The converse, an opinion that the plaintiff is not competitively employable, may result in unfair compensation. However, the legal system usually reduces the former rather more faithfully than it ameliorates the latter.

H) Beware the “Stress of the Litigation” Argument

This argument is often made when debating the source of the plaintiff’s failures or struggles and determining the reason for the loss of function.

This argument attempts to undermine the client’s attempts at recovery. For example, if psychological counselling has been recommended but has not been helpful, the defendants will argue that the client was distracted by the stress of the litigation (i.e. financial worries, upcoming court hearings, multiple assessments), but once these worries go away they will not be replaced and the client will recover.

Despite research or myth suggesting that plaintiffs demonstrate marked improvement in function when the “stress of litigation” terminates, it is our experience that seriously injured individuals rarely improve by removing the stress of litigation. It is also our experience that seriously injured individuals are more prone to blaming the litigation process (or anything else) rather than their injuries, for their problems. After all, hope springs eternal, and better to blame a temporary process.

Conclusion

Treating and expert opinions can make the difference between securing funding for treatment in the rehabilitation context and compensation in the litigation context. During this process these recommendations are scrutinized by agencies who may have limited resources to fund the recommendation or by defendant litigants whose interest is to pay as little as possible in compensation. By strengthening these opinions and being aware of the likely counter-arguments and unintended uses of these opinions, we can further the goal of securing much needed funding and treatment for brain injury survivors.