The (in)Expert Report

All medical witnesses are treated as ‘expert’ witnesses by the courts, whether they are treating doctors or doctors commissioned by one of the parties to provide an independent opinion. This is because all doctors hold knowledge which is outside that held by the court. There is still considerable cynicism at the ‘independence’ of doctors commissioned by a party. This was most cogently expressed by a NSW judge in statements which led to his decision being successfully appealed to the High Court (Vakauta v Kelly (1989) 87 ALR 633). He referred to three doctors called to give evidence for an insurer as:

“…that unholy trinity, [the insurer’s] usual panel of doctors who think you can do a full week’s work without any arms or legs,…(whose) views are almost inevitably slanted in favour of the [insurer] by whom they have been retained, consciously or unconsciously.”

Apart from being Chief Executive of the Medical Insurance Panels (MIPS), I am also Convenor of Medical Panels, which is the final arbiter of medical disputes in “WorkCover”, Victoria’s workers’ compensation scheme. As such, I read literally thousands of medical reports each year, written both by treating doctors and doctors commissioned by either a WorkCover agent or the worker’s legal representative. Obvious “Rent-A-Quacks” (medical guns for hire) are rare, and for the most part quickly exposed. However, many doctors are either unconsciously Calvinistic in their attitudes, “Hard” men, like the “unholy trinity” referred to above or “soft” and sympathetic to the claimant. Crossing between my two fields of endeavour, I find it wryly ironic the stance that some doctors take. Some argue strongly against commercial settlements in medical negligence litigation and bitterly attack the use of medical defence subscriptions to make what may be seen to be no-fault welfare payments to patients. Yet they are often the ones who bend medical terminology most to assist a patient with a worker’s compensation claim!

In this instance, I’m more critical of “soft” doctors than “hard” ones. This is not because I’m a closet “hard” doctor but because the intellectual dishonesty of it offends me. Doctors seem reluctant to say or write “I think this patient is genuinely impaired with back pain but I do not know what pathological process is causing the pain”. They prefer to invent impressive, diagnostic-sounding labels like “somatic back pain” and “lumbar strain syndrome” and the like.

The following represent genuine extracts from a “treater’s” report lodged by a worker in support of a compensation claim:

“…first consulted me in 1998 for pain to her lumbar region, a scan revealed injury to her lumbar disc, sustained from a work fall”

First, I didn’t know there was only one lumbar disc, I was taught there were five. Next, how can a scan (nature unspecified) determine that the disc injury was “sustained from a work fall”. The best that could be said was that “the injury was consistent with having arisen as a result of the reported fall at work.”

“Any disc injury to the point of deterioration upsets the sacral base and causes a pelvic rotation loss of cranio-sacral rhythm and sets up a scolioses and spheno-basiler description the result is a lowered immune system and weakness to further reciprocal partnership with other discs. A domino effect insues.”

The fractured syntax and misspelling is acceptable in the knowledge that the author’s first language is not English. But the explanation of the aetiology and pathogenesis of the back problems is not just nonsense but nonsense dressed up in arcane and misapplied wording so as to sound impressive.

“The speed in which this deteriation has happened…is not normal age related wear and tear but exacerbated by an injury related trauma. Having treated (her) on numerous occasions, I can find no fault in her integrity and know that (she) still wishes to work and is currently employed not wishing to use her injury as a means to rort the system but only wishes to be accorded the same respect and hearing as any other rational integral person.”

Again leaving the language peculiarities to one side, the phrase “injury related trauma” is meaningless. Further, the report is totally discredited because its author has moved from being an “expert” to being a (very clumsy) advocate for his patient.

Not only did someone pay for that report, it was actually produced in support of the worker’s claim.

The following are some tips in producing medicolegal reports, based on my experience in seeing the mistakes made by practitioners in the past.

Don’t be an advocate in your patient’s or commissioning agent’s cause.
It is not for you to decide whether someone’s claim is just or not and leap to either the defence of the public purse or to the person’s welfare. Treating doctors should provide dispassionate recitals of clinical fact; the history taken, the objective findings on examination, the investigation results, treatment provided, etc. Non-treating doctors commissioned to assess claimants should again record clinical fact, and provide transparently unbiased opinions, soundly based in scientific clinical practice.

Be prepared to say “I don’t know”.
There will be times when the most honest thing you can write is “I have no reason to doubt that the claimant/patient is anything other than genuine in describing his/her condition and symptoms. However, there is no objective clinical basis, at the present time, to support any specific diagnosis. If a decision must be taken now regarding compensation, it will need to be taken on other than objective clinical grounds”.

Don’t invent diagnoses.
Don’t pass off a descriptive term as a diagnosis. Better to say “Lumbar pain of undefined origin” rather than “Somatic back pain”. Better to say “probable soft tissue strain” rather than “Lumbar strain syndrome”. Don’t make up pseudo-medical words to sound impressive. Don’t use words and phrases like “Regional Pain Syndrome”, “Fibromyalgia”, and the like if they can be supported by reference to internationally accepted diagnostic usage guides, for example, DSM IV for psychiatric diagnoses.

Don’t pass off a possible mechanism of injury as a diagnosis.
How did the Repetitive Strain Injury (RSI) “epidemic” ever get off the ground? At best, RSI was a descriptive term grouping a number of different conditions in which causation was probably related to overuse. Tennis Elbow may be a member of that “RSI” group, but the anatomy and pathology are well known and well defined. DeQuervain’s tenosynovitis similarly is a diagnosis well based on anatomy and pathology. But there were thousands of claimants in whom the symptoms were not anatomically congruent and in whom no definite pathological process could be identified. Maybe there was some new, then undiagnosed, pathological process going on, but the RSI advocates would brook no challenge - RSI was an injury, and a compensable one at that.

It’s the intellectual dishonesty of such reports that upsets me, whether venal or vain-glorious. Ultimately we help no one if we do not acknowledge medicine’s limitations. A civil court or tribunal must make a decision, and does so on the balance of probabilities. That does not mean we must lower our scientific standard of proof to that lower standard. Rent-A-Quacks, soft or hard, and intellectually sloppy doctors demean us all.

Paul Niselle, Medical Practitioner