Key points

Introduction

Physiatrists involved in the medicolegal assessment of persons with traumatic brain injury (TBI) have many challenges facing them including but not limited to (1) how to fully assess the causality, apportionment, and impact of the myriad impairments that may occur after such injuries, direct and indirect; (2) how to ensure that the examinee provides optimal effort and valid performance; (3) how to formulate opinions to provide the necessary assistance that the triers of fact in the case require; (4) how to strive to maintain neutrality and ethical practice in an adversarial environment ripe with nonobjective influences and potential for bias; and (5) how to provide a holistic biopsychosocial analysis of the case while acknowledging any limitations, as they may exist, in the data, analysis, and/or conclusions.

The formal medicolegal evaluation or so-called independent medical evaluation (IME) provides an opportunity for a nontreating physiatrist to perform an assessment of an individual for purposes of opining on a potential wide range of issues emanating from a claimed TBI. Within that context the physician must know how to take a thorough and relevant history, perform a relevant hands-on evaluation, review all neurodiagnostics (including neuropsychological and neuroimaging evaluations), and generate a report that addresses the claimed TBI related consequences (discussed later).

Introduction

Physiatrists involved in the medicolegal assessment of persons with traumatic brain injury (TBI) have many challenges facing them including but not limited to (1) how to fully assess the causality, apportionment, and impact of the myriad impairments that may occur after such injuries, direct and indirect; (2) how to ensure that the examinee provides optimal effort and valid performance; (3) how to formulate opinions to provide the necessary assistance that the triers of fact in the case require; (4) how to strive to maintain neutrality and ethical practice in an adversarial environment ripe with nonobjective influences and potential for bias; and (5) how to provide a holistic biopsychosocial analysis of the case while acknowledging any limitations, as they may exist, in the data, analysis, and/or conclusions.

The formal medicolegal evaluation or so-called independent medical evaluation (IME) provides an opportunity for a nontreating physiatrist to perform an assessment of an individual for purposes of opining on a potential wide range of issues emanating from a claimed TBI. Within that context the physician must know how to take a thorough and relevant history, perform a relevant hands-on evaluation, review all neurodiagnostics (including neuropsychological and neuroimaging evaluations), and generate a report that addresses the claimed TBI related consequences (discussed later).

Controversies and caveats

Traditional IME training, regardless of the specialty organization responsible for said training, holds that there is no physician-patient relationship in the context of an IME. In this context, the physician becomes the examiner and the person being assessed, the examinee. It should also be noted that an examiner-examinee relationship in the absence of a treating relationship would dictate that the examiner not share opinions regarding their examination findings and/or conclusions. The party who retained the examiner to conduct the IME should be the only person or persons receiving such information. Traditional training also dictates an absence of confidentiality in such a setting (ie, if the examinee tells you they murdered someone then you have the legal and ethical responsibility to report what was conveyed). It is also important to remember that the IME document is privileged and should only be released to the requesting agency unless otherwise appropriately subpoenaed.

Some organizations’ IME ethical guidelines run contrary to the espoused traditional practices. For example, the American Medical Association (AMA) has stipulated that there is a limited patient-physician relationship in the context of an IME. Additionally, the AMA code further edified that one had to maintain patient confidentiality as outlined in Opinion 5.09 dealing with IMEs, which specifically stipulates that confidentiality is to be maintained as with any other “patient” except as “required by law.” The AMA ethics code further directs physicians involved in IMEs to “disclose fully potential or perceived conflicts of interest,” noting: “The physician should inform the patient about the terms of the agreement between himself or herself and the third party, as well as the fact that he or she is acting as an agent of that entity.” The authors have concerns about stipulating that one is an agent for the retaining party given the implications of advocacy for said party when one’s role by definition should be neutral as a nonadvocate for any side involved in the litigation.

Physiatrists are often challenged to apply general clinical ethics to unfamiliar medicolegal situations. Many organizations offer their own versions of board certification. The criteria for attainment of these certifications vary from merely paying a fee, to a requirement for formal training, practical experience, and written and/or oral examination. Board certification and at a minimum board eligibility should serve as the foundation for providing any medicolegal testimony. Further subspecialty certifications, such as the American Board of Physical Medicine and Rehabilitation Brain Injury Medicine Certification can further bolster one’s credentials if testifying on TBI-related cases. Other organizational certifications may be of value in the context of learning IME practice nuances but one should carefully investigate the organization’s reputation and scope of training, and membership and certification requirements. Experience, training, and additional credentials including publication and speaking record can serve an expert well in terms of knowledge base and ultimately being accepted by the court to meet “expert” criteria.

The potential liability that an examiner may have for opinions expressed in the context of the examination and/or for any real or claimed psychological or physical injury that the examinee may have sustained in the examination process is rarely considered by medical practitioners. Clinicians are not immune to legal action for work performed in the context of such evaluations and should ensure that their medical malpractice insurance specifically covers all dimensions of their medicolegal practice. Practitioners must also realize that IMEs are generally viewed by State Medical Boards as constituting the practice of medicine; therefore, performing IMEs or testifying in states where one is not licensed puts one at risk for being charged and even convicted of practicing medicine without a license.

The medicolegal examination: an overview

The general requirement for ensuring ethical conduct in any form of medicolegal evaluation is rendered even more imperative when confronted by the complex, often subtle range of impairments and associated disability that may occur after TBI, particularly when more mild. The evaluator must be cognizant of the relative attribution of postinjury impairment to the TBI itself versus comorbid conditions including but not limited to posttraumatic psychological, musculoskeletal, and/or peripheral neurologic disorders. It should be understood that in most cases the IME occurs as a one-time event, thereby necessitating as complete an assessment as feasible in the context of the time permitted, which often is limited by opposing counsel and/or the court. Setting the assessment standards high by adhering to ethical conduct while using evidence-based assessment methodologies that meet current consensus practice standards should be every expert physiatrist’s goal.

Evaluators are expected to provide equal measures of respect to the examinee including courtesy, dignity, and fairness and spend adequate time in the assessment process. Certain forms of assessment may need to be provocative, either psychologically or physically, to evoke symptoms and/or signs relevant to making diagnostic formulations in a case. In this context, testing should always be performed for symptom and sign validity, performance validity, effort, and response bias to ensure that the presentation and testing results accurately reflect the examinee’s condition. Experts should keep in mind that depending on the evaluation circumstances examinees may overreport, underreport, and accurately report their symptoms and some may do a combination of the aforementioned, consciously and/or unconsciously.

In common with the judiciary, the duty of impartiality is owed equally to all litigating parties. It is the evaluator’s task to conduct the evaluation in a fair manner and to present the results fully and objectively without advocacy for any party involved. The expert, first and foremost, remains a physician and should follow the Hippocratic Oath at all times.

Medicolegal terminology

Several terms and phrases are unique to the world of clinicolegal practice that should be familiar to anyone who serves as an expert witness.

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  Aggravation: a permanent worsening of a pre-existing impairment/condition.

  
  
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  Apportionment: the act of assigning responsibility of a particular event or injury to a certain proportion or percentage of an examinee’s particular impairment.

  
  
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  Causality: the act of relating a particular consequence, such as an impairment, to a specific event or set of events in time.

  
  
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  Exacerbation: a temporary worsening of a pre-existing impairment/condition.

  
  
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  Maximum medical improvement: therapy phraseology that emanates from Worker’s Compensation literature in the AMA Guides to Evaluation of Permanent Impairment, the meaning of which has evolved over time and remains consensus as opposed to evidence based. In the sixth edition of the Guides to Evaluation of Permanent Impairment, it is conceptualized as “a date from which further recovery or deterioration is not anticipated, although over time (beyond 12 months) there may be some expected change.” It is important to note if there is potential for future improvement and/or decline depending on the nature of the specific injury and impairments (ie, poorly controlled epilepsy).

  
  
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  Medical probability: the statistical likelihood that the medical event in question is more likely than not (greater than 50%) going to occur or occurred because of a particular event, which is different from the traditional levels of “significance” used in hypothesis testing (ie, .01 level of significance).

Ethical caveats

The American Academy of Physical Medicine and Rehabilitation published a white paper with recommendations for expert witness testimony. There has been no updated version of this document published since its initial release. This document indicates that the expert witness should serve to educate the court as a whole, rather than representing one side or the other, independent of which side retained the expert. The ultimate test for accuracy and impartiality is whether reports or testimony could be presented without alteration for use by either the plaintiff or the defendant.

Three additional recommendations are emphasized: (1) identification of opinions that are personal and not necessarily held by other physicians, (2) making a clear distinction between medical malpractice and medical maloccurrence when analyzing case evidence, and (3) willingness to submit transcripts of depositions and/or courtroom testimony for peer review.

The role of the evaluator should be passive in relationship to the evaluee and his/her family. The evaluator neither seeks nor accepts any duty of care, and must explicitly, firmly, and unambiguously discourage any expectation of or request for care. Avoiding conflicts between differing professional roles is equally important given the potential for compromising objectivity and credibility.

The main ethical caveats in the context of providing testimony on cases involving TBI should include the following:

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  Substantive experience in the area in which one is to testify

  
  
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  Limitation of testimony to one’s sphere of medical expertise

  
  
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  Professional conduct, including language, at all times

  
  
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  Maintaining a nonadvocacy position

  
  
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  Provision of findings that are favorable and unfavorable with regards to the case in question

  
  
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  Avoidance of mixing expert roles

  
  
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  Avoidance of adversarial posturing

  
  
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  Address the science behind the opinions and not those persons providing the opinions (ie, avoid denigration of fellow professionals)

  
  
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  Avoid scenarios with potential conflict of interest (by perception or in reality)

  
  
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  Remain objective and unbiased at all times

  
  
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  Charge for your time as an expert not for the activity you are engaged in

  
  
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  Save all notes and testing generated during the IME

Review of expert roles in medicolegal cases

Relevant to physicians and other professionals, Blau identified three different and conflicting roles for professionals working in medicolegal settings: (1) treating doctor, (2) expert witness, and (3) trial consultant. Great caution should be taken to avoid engaging in more than one of these roles in a particular case; however, treating doctors are often asked by lawyers to serve as experts to save on expenses. Each role has a unique set of responsibilities that, because of conflicting expectancies and pressures, increases risk of compromising objectivity. Every effort should be made to avoid placing the practitioner in a conflictual relationship with their patient and with their own practice ethics because one must be an advocate for their patient and cannot therefore be “neutral” as a treater/expert.

A further role existing in some circumstances is that of “peer or case reviewer.” This professional is retained to review the case evidence without direct assessment of the evaluee (evidentiary review), and/or to critically evaluate the opinions in the case. Not all clinicians are comfortable with performing a strictly evidentiary review and offering expert opinions about a claimant or a peer based solely on documentation without interview or direct evaluation. Some practitioners stipulate that their peer review work product should be used only for internal review purposes and not proffered for medicolegal purposes.

Independent medical evaluation tips for traumatic brain injury cases

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  Always obtain a retention letter and a signed retention/consultative agreement.

  
  
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  Always make sure you request clear documentation as to why you are being retained and what specifically you are being asked to do.

  
  
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  Establish ground rules with all sides before the examination/evaluation.

  
  
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  Have the examinee sign a consent for evaluation, photography, and videography, as relevant, and a document stipulating the expectancies from them as the examinee (ie, be honest, cooperative, and put forth full effort).

  
  
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  Strive to use standardized, objective, normed, and generally accepted evaluation tools/examinations in the context of the evaluation including tests of effort; response bias; and sign, symptom, and performance validity.

  
  
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  Always request an opportunity to talk with corroboratory sources.

  
  
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  Avoid third-party observers given their potential to denigrate examinee performance and when not possible acknowledge the potential negatives of same in the IME report.

  
  
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  Avoid pejorative language in the context of direct assessment and/or in the report itself.