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Expert Testimony: Implications for Life Care Planning Contributors: Richard T. Katz, MD, Richard Paul Bonfiglio, MD, Richard D. Zorowitz, MD Feature Editor: Kristi L. Kirschner, MD Feature Editor Introduction For better or worse, the U.S. malpractice justice system relies on physicians who are willing to provide expert witness testimony. Historically this task has fallen into a no-man’s land, in that it is not under the auspices of either state medical licensing boards or professional associations. In the past, doctors could hang out their shingle advertising themselves as “experts,” and the onus fell on lawyers to establish or discredit expertise and testimony. In the past 2 decades this practice has begun to change, prompted by a series of 3 U.S. Supreme Court cases that challenged the pre-existing standards for establishing scientific evidence in the courtroom [1]. In 1997, the American Medical Association (AMA) passed a resolution stating that expert witness testimony is considered to be under the practice of medicine and therefore is subject to peer review [2]. The subsequent scope and purview of state licensing boards in disciplining medical expert witnesses for unprofessional or fraudulent testimony have been mixed [3]. Some states are enacting restrictions with regard to who can testify as an expert (for example, Florida requires that out-of-state physicians apply for a certificate). In 2011, the AMA proposed further restrictions, outlining model legislation for expert testimony and recommending that experts be “recognized by the American Board of Medical Specialties or an equivalent board, be in active medical practice in the same discipline as the defendant or have devoted a substantial portion of time teaching at an accredited medical school in relation to the medical care at issue within five years of the defendant’s alleged negligence” [4]. Professional associations have also gotten involved in varying degrees. The American Association of Neurological Surgeons [5], American Academy of Orthopedic Surgeons (AAOS) [6], and American College of Emergency Medicine [7] have been quite active in adopting guidelines and peer review for expert witness testimony. AAOS
has gone so far as to establish an Expert Witness Program that launched in 2004 with easily accessible materials on the Web site to clarify the duties of the expert orthopedic surgeon witness, specifically regarding AAOS’ goal “of providing complete, objective and scientifically based opinions in legal matters that affect patients and AAOS members” [6]. The American College of Emergency Medicine explicitly recommends that expert witnesses be willing to submit their testimony for peer review. The American Academy of Physical Medicine and Rehabilitation (AAPM&R) was among the first to address the issue, with a 1992 position paper addressing general guidelines and standards; this position paper was most recently revisited and renewed without changes by the Board of Governors in August 2012 [8]. The AAPM&R code of conduct further specifies that “when called upon to serve as an expert witness, the physiatrist may testify as desired but only within her/her approved areas of expertise and within the scope and knowledge of his/her training and practice” [9]. Not surprisingly, physiatrists are particularly in demand when a case involves questions of extent of disability or life care planning and future expenses. I was pleased to be approached by Dr Richard Katz, a physiatrist on the faculty of Washington University School of Medicine in St Louis, Missouri, who has been involved in expert witness testimony for more than 20 years. He proposed the following case and questions for discussion: A malpractice case involves a prototypical story of a young boy we will call Billie, whom the plaintiff alleges sustained a brain injury as a result of obstetrical malpractice. Billie, who was born with hypoxic ischemic encephalopathy (HIE), is now 4 years old. He had neonatal seizures, and early magnetic resonance images showed lentiform and ventral thalamic nuclei changes
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suspicious for HIE. He was managed acutely in the neonatal intensive care unit (NICU) with ventilator management, fluids, antibiotics, phenobarbital, and hyperalimentation. Procedures included peripherally inserted central catheter placement, umbilical line, percutaneous endoscopic gastrostomy (PEG) tube placement, and circumcision. He remained in the NICU for 3 weeks. Subsequent examinations revealed that Billie has spastic quadriplegia, as well as severe developmental delay. He rolls in both directions, reaches for objects with both hands, and sits up briefly, but he cannot sit without support. He is dependent on others for all activities of daily living. He likely has ongoing seizures but is taking no antiseizure medication. He continues to receive PEG tube feedings. He takes a proton pump inhibitor for gastroesophageal reflux disease. Other complications include spasticity, otitis media, dental grinding, left esotropia, drooling, hospitalizations for respiratory infections, and constipation. He sleeps through the night without awakening. A physiatrist is asked to prepare a life care plan. Questions for Consideration What credentials should be required to be considered an expert witness, including life care planning? What is the proper role for professional societies or licensing with regard to regulating expert witness testimonies? What type of medical evidence is acceptable within a court of law? What is the proper scope of life care planning and the benchmarks that should be used in estimating future costs (particularly given the wide fluctuations and notorious difficulties in uncovering health care costs in general)? What is the proper methodology for estimating life expectancy, given the limitations of actuarial tables and the evolving treatment and changes in health care technologies? To help us address these questions, I have invited the following commentators: 1. Dr Richard T. Katz, professor of Clinical Neurology (PM&R), Washington University School of Medicine; Fellow, American Board of Physical Medicine and
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Rehabilitation; fellow, American Board of Independent Medical Examiners; fellow, American Board of Electrodiagnostic Medicine; Section Editor, AMA Guides, sixth edition 2. Dr Richard Paul Bonfiglio, clinical assistant professor of Physical Medicine and Rehabilitation, Temple Medical School, Philadelphia, PA 3. Dr Richard D. Zorowitz, associate professor of Physical Medicine and Rehabilitation, The Johns Hopkins University School of Medicine, Baltimore, MD; chairman, Department of Physical Medicine and Rehabilitation, Johns Hopkins Bayview Medical Center, Baltimore, MD; chairman, Clinical Practice Guidelines Committee, American Academy of Physical Medicine and Rehabilitation As always, we welcome your comments or suggestions for future columns! References 1. Kassirer JP, Cecil JS. Inconsistency in evidentiary standards for medical testimony: Disorder in the courts. JAMA 2002;288:13821387. 2. American Medical Association. Report 18 of the Board of Trustees of the American Medical Association (1-98): Expert witness testimony (Reference Committee B). Available at: www.aapl.org/AMA_ expert_witness.htm. Accessed December 11, 2014. 3. Bal BS. The expert witness in medical malpractice litigation. Clin Orthop Relat Res 2009;467:383-391. 4. Gallegos A. Expert witnesses on trial. August 1, 2011. Available at: www.amednews.com/article/20110801/profession/308019938/4/. Accessed December 11, 2014. 5. American Association of Neurological Surgeons. Rules for neurosurgical medical/legal expert opinion services. Revised March 22, 2006. Available at: https://www.aans.org/en/About%20AANS/ w/media/A5BC91F9297D4AF98D31ABD48C42C076.ashx. Accessed December 11, 2014. 6. American Academy of Orthopaedic Surgeons. AAOS expert witness program. Available at: http://www3.aaos.org/member/expwit/ expertwitness.cfm. Accessed December 11, 2014. 7. American College of Emergency Physicians. Expert witness guidelines for the specialty of emergency medicine. Available at: www. acep.org/Clinical—Practice-Management/Expert-Witness-Guidelinesfor-the-Specialty-of-Emergency-Medicine/. Accessed December 11, 2014. 8. American Academy of Physical Medicine and Rehabilitation. AAPM&R expert witness position paper. www.aapmr.org/practice/ resources/positionpapers/AAPMR%20Documents/Expert-WitnessTestimony.pdf. Accessed August 7, 2014. 9. American Academy of Physical Medicine and Rehabilitation. Code of conduct. V. Relationships with community and government. Available at: www.aapmr.org/about/who-we-are/Pages/aapmr-codeof-conduct2.aspx#V. Accessed December 11, 2014.
Commentary from Richard T. Katz, MD Life Care Planning and the Physiatrist The legal system frequently depends on medical expertise for evidence. Life care planning is a type of medical witness testimony that recently has begun to be
provided by physiatrists who may enter the field of forensic medicine. Most life care plans are prepared by professionals other than physicians. In my experience in life care planning over dozens of years, nurses and vocational rehabilitation professionals make up the
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majority of such practitioners. Avenues for training with regard to life care planning include seminars for nurses (eg, at Kelynco University), seminars open to multiple specialties (eg, the University of Florida Life Care Planning Course), textbooks such as the Life Care Planning and Case Management Handbook, third edition, by Weed and Berens, and courses held by trade organizations (eg, the International Association of Rehabilitation Professionals). Two physiatrists sit on the faculty of the University of Florida Life Care Planning course. Methodology The material within a life care plan is generally not new to a physiatrist. The following 4 formulative steps are used to create such a document: 1. Determination of the extent and sequelae of the patient’s physical and cognitive impairments 2. Estimation of the patient’s prognosis 3. Estimation of the need for and benefit of further medical and rehabilitative interventions 4. Calculation of the costs of future personal needs (eg, wheelchairs, orthopedic equipment, home furnishings and modifications, medical supplies, and recreational equipment) Generally, the only information that a physiatrist might not be familiar with is the cost of various items. Prior to the advent of the Internet, soliciting prices for services from various vendors was difficult, but now the price of most items and services can be found online. Thus most physiatrists have no difficulty slipping into the role of life care planner because we have extensive experience in the chronic care and needs of persons with a wide variety of physical and cognitive disabilities. As for the credentials of other professionals, the level of appropriate expertise varies widely. Many life care planners who are not physicians may have taken a course in the construction of life care plans but have little experience in the needs of people with chronic disabilities. In reality, the mathematical sophistication of a life care plan is rather simpledon a par with construction of an annual home budget on a spreadsheet. One critical difference between the physician and nonphysician life care planner is that many states have statutes indicating that the determination of life expectancy cannot be performed by a person who is not a physician. Thus many life care plan preparers who are not physicians either simply use U.S. Census data for survival or consult a physiciandoften a physician who knows little or nothing about estimating life expectancy. When constructing a life care plan, one creates a yearly “budget” and then multiples the annual cost over the life expectancy of the patient. Some items may be one-time expenses, but these items can simply be amortized over the lifetime of the patient.
Life Expectancy One of the major shortfalls in physiatrist expert witness testimony with regard to life care planning is the nonscientific estimation of life expectancy. Most physiatrists have not been trained in life expectancy prognostication. Life expectancy is not a “guess” when a particular person will perish. Life expectancy is a specific statistical concept. If one takes a particular group of peopledfor example, white males born in 1956dlife expectancy is the average number of years that the members of the group will survive. This average is approximately the same amount of time until 50% of the persons in the group have died. This calculation answers a key question when formulating a life care plandhow many years will need to be covered in the budgeting? It also answers a key question for the court of law: “When is it more likely than not that the child will no longer be alive?” The basis for estimating life expectancy is to consult the literature about life expectancy for a particular diagnostic group. For example, life expectancy literature has been summarized for children with cerebral palsy, spinal cord injury, and traumatic brain injury. Unfortunately, some experts prognosticate life expectancy without adequate training and “shoot from the hip” or “make up” life expectancy figures when offering a life expectancy opinion. A person who does not understand life tables and statistical concepts such as standardized mortality ratios should not offer life expectancy opinions. Physicians who do not thoroughly review relevant medical and scientific data about life expectancy for the particular diagnosis in question should not offer an opinion [1]. To do otherwise is merely speculation and does not meet the necessary standard for expert testimony within a court of law [2]. One common error is to use the U.S. Census life expectancy documents, which report life expectancy for the entire U.S. population based on the person’s age, gender, and race (eg, white/black/Hispanic). Such information is useful for estimating life expectancy for large groups of Americans but not for persons with a severe medical illness. Ill-informed physicians argue that “all types of people” are included in the U.S. Census and thus utilization of the U.S. Census data offers a representative estimation of life expectancy for the child in the vignette provided. This argument is patently wrong, as argued in a recent monograph on life expectancy: “As an illustration, the mean annual income in the United States is a general average. If one wants to estimate the expected annual income of a Fortune 500 chief executive officer (CEO), the general U.S. mean is inappropriate even if all CEOs are included in the larger average. The fact that they are CEOs makes them a distinct subgroup with its own average. Additionally, declaratory statements based on
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nothing more than nonsystematic data, such as from personal clinical experience should be avoided. Similarly, statements to the effect that an individual could live to a normal life expectancy or that the average of a subgroup does not apply to the individual because of alleged but not demonstrably distinguishing characteristics should not be credited, as they merely betray a misunderstanding of the very concept of life expectancy” [3]. Estimation of Personal Care Needs Many life care planners spend extensive time and money precisely pricing every diaper with the false notion that this approach will increase the accuracy of the life care cost projection. In fact, durable and disposable medical goods make up a very small portion of the total life care planning budget. Approximately 85% of the variance in a life care plan will be accurately accounted for if the life care planner appropriately estimates the following variables: The life expectancy of the child (previously discussed) The appropriate level (certified nursing assistant [CNA], licensed practical nurse [LPN], or registered nurse [RN]) and hours of nursing care An appropriate future schedule for therapy services The child in the vignette has a life expectancy of approximately 21 years of age, depending on which articles one favors within the cerebral palsy life expectancy literature. If a life care planner is ignorant of such literature and opines a “normal” life expectancy of 80 years based on the U.S. Census data, this estimate will more than triple the cost of the life care plan [4]. When is a CNA versus a more skilled level of nursing care needed? The answer to this question depends on the presence or absence of the need for skilled nursing tasks and whether the family would agree to participate in some of the care. For example, performing daily living tasks such as cleaning, toileting, mobility, and hygiene requires the services of a CNA. The need for a tracheostomy tube or deep suctioning requires the care of an LPN or RN. Although it is not obvious to physicians who are unfamiliar with nursing staff salaries, an LPN makes double and an RN triple the salary of a CNA. Annual budgets for nursing care are often 6 figures per year, dwarfing all the other cost centers in a life care plan. Thus the appropriate budgeting of the appropriate type and amount of nursing type care is a vital cost center to prognosticate future needs accurately. The third point deals with therapeutic interventions. How much therapy is beneficial for a child with cerebral palsy? To what age should such therapies be scheduled? Some life care planners advocate that a child receive physical therapy thrice weekly for the remainder of life.
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Is this recommendation scientifically valid? This argument stems from an unproven concept that “If the child receives more or better care, s/he will live longer.” Contradictory information exists as to what more or better care truly is in children with cerebral palsy. For example, does placement affect survival (home versus institution)? Some articles suggest that institutionalized patients live longer, whereas others suggest that home care promotes longer survival [4]. Such opinion flies in the face of recent evidence, which disproves the adage “more care is better care.” As noted in Consumer Reports Health, “For many consumers, good health care means seeing as many specialists as possible. It may also mean undergoing rounds of tests and, if a serious illness is diagnosed, prolonged hospital stays and extensive treatment. Though the idea that more health care is better seems to make sense, recent research has shown that none of the above necessarily helps you live better or longer. In fact, too much medical care might shorten your life” [5] JAMA Internal Medicine (formerly entitled Archives of Internal Medicine) now includes a monthly column that highlights this worn-out idea that “more care is better care” with periodic articles showing inferior outcomes compared with more intensive or aggressive care. What does the literature show with regard to therapy and cerebral palsy? Physiatrists may be surprised to note the weakness of the medical literature in this regard [6]. Although scientific data supporting physical therapy in persons with cerebral palsy is weak, even uncontrolled studies show no treatment effect in the most severely impaired children. In the most severely impaired children, developmental milestones plateau by approximately 6 years of age. Is there any scientific justification, then, for advocating thrice-weekly therapy services for the patient’s entire life? Other Items Although life care planners may argue extensively about the costs of particular durable and disposable medical goods, these prices are readily found on the Internet. Surprisingly, the costs for such items actually make up a small portion of the total cost of a life care plan. Although medical procedures may vary widely in cost, the cost of standard services such as physical therapy (and their discounted prices) can generally be obtained by calling vendors in the local area of the patient. It is widely recognized that prices vary widely, and the ability to determine qualitydindependent of pricedremains elusive. Next Steps? In my opinion, the AAPM&R needs to sponsor a standard curriculum for the construction of life care plans and expert testimony. There simply is not enough “new material” in the field of life care planning to warrant any type of “subspecialty exam.” However, a certificate
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course, similar to the Impairment and Disability Seminar offered by AAPM&R for approximately 10 years beginning in early 1990s, would be an appropriate educational vehicle. In addition, I believe certain steps need to be implemented by our specialty: 1. Recognize that physiatric forensic medicine and the construction of life care plans by physiatrists is an important growing area of service within our field. 2. Ensure that all expert opinion adheres to legal standards of evidence within a court of law. Readers are referred to expert materials for what is constituted as meeting the standard of evidence [7,8]. Physiatrists should have current experience and ongoing knowledge in the area in which are testifying. Review of the facts should be fair and impartial, and physicians should thoroughly review relevant medical and scientific data before offering an opinion. Opinions should be based on credible medical literature. As stated by Field and Carey [9], “When expert witnesses not merely disagree, but misrepresent data, misrepresent their background credentials and expertise, and offer egregiously false testimony, the legal process is violated and verdicts may be distorted.” 3. Physician testimony of opinions that appear to be questionable should be subjected to peer review. Physicians who offer “egregious” testimony should be sanctioned. Professional organizations have an important role to play in the standards of expert witness testimony. As Kesselheim and Studdert [10] note, they have “access to high levels of technical expertise, occupy powerful vantage points within their fields, and are often engaged in relevant pursuits such as synthesis of evidence of best practices.” Conclusion Life care planning is not a subspecialty of physiatry. After attending a training seminar, any physiatrist could
readily carry out life care planning. The problem in the field at present is that physicians may offer opinions that would not withstand the rigors of peer review and sometimes offer no scientific basis for their life expectancy opinions. It is time for the specialty to address the quality of professional opinions of physiatrists when they do not stand up to such scientific rigor. Review panels have been set up by professional organizations to regulate physician expert witness testimony in several specialties of medicine, and it is time for our specialty to do the same. Physicians who offer unscientific opinion should be censured. Physiatric expert testimony should be expected to meet evidentiary standards for medical testimony and not rely on personal opinion and innuendo.
References 1. Williams MA, Mackin GA, Beresford HR, et al. American Academy of Neurology qualifications and guidelines for the physician expert witness. Neurology 2006;66:13-14. 2. Kassirer JP, Cecil JS. Inconsistency in evidentiary standards for medical testimony: Disorder in the courts. JAMA 2002;288: 1382-1387. 3. Vachon PJ, Sestier F. Life expectancy determination. Phys Med Rehabil Clin N Am 2013;24:539-551. 4. Katz RT. Are children with cerebral palsy and developmental disability living longer? J Dev Phys Disabil 2009;21:409-424. 5. Consumer Reports Health. Too much treatment? Aggressive medical care can lead to more pain with no gain. Available at: https:// www.jsmf.org/meetings/2008/july/consumerreports_org_health_ doctors-hospitals_hospita.pdf. Accessed December 11, 2014. 6. Suoranta A, Malmivaara J, Makela A, et al. Effectiveness of physiotherapy and conductive education interventions in children with cerebral palsy: Focused review. Am J Phys Med Rehabil 2008;87: 478-501. 7. Jerrold L. Role of the expert witness. Surg Clin N Am 2007;87: 889-901. 8. Committee on Ethics. Expert testimony. Obstet Gynecol 2007;110: 445-446. 9. Field AAD, Carey WD. Expert witness malfeasance: How should specialty societies respond? Am J Gastroenterol 2005;100: 991-995. 10. Kesselheim AS, Studdert DM. Role of professional organizations in regulating physician expert witness testimony. JAMA 2007;298: 2907-2909.
Commentary from Richard Paul Bonfiglio, MD Ethical Issues For Physiatrists Determining Damages in Medicolegal Cases. Physicians practicing physical medicine and rehabilitation (PM&R/ physiatry) by their education, training, and experience are uniquely qualified to evaluate the nature and extent of medical conditions of persons with catastrophic injuries and illnesses and the resultant functional limitations, extent of impairments, medical complications, and prognoses. Physiatrists routinely work with persons who have sustained brain and spinal
cord injuries, strokes, amputations, burns, deconditioning from organ system failures, and chronic pain conditions. Physiatrists are also regularly part of teams involved in the care of these persons along with rehabilitation nurses, therapists, psychologists, case managers, physicians in other medical specialties, and others as required by the needs of the individual. Utilizing this knowledge about the care of persons with catastrophic medical conditions and associated impairments allows physiatrists to provide an analysis of the extent of damages of plaintiffs in medicolegal matters.
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Such analysis may include provision of the medical foundation or criticism for a life care plan and a determination of the injured person’s prognosis, including possible future medical complications, vocational potential, and life expectancy. For persons who have experienced catastrophic injuries and illnesses, daily, medical, and rehabilitative care needs may greatly exceed coverage by health insurance. When potential legal liability exists, provision of a thorough assessment by a physiatrist can provide the basis for determining the extent of ongoing care needs and prognosis, which is an essential element of a plaintiff’s legal case by establishing the extent of damages [1]. However, projecting these care needs over an individual patient’s lifetime can be a daunting task. The provision of health care is an ever-evolving science because of changes in applicable laws, insurance and other funding sources requirements and expectations, service delivery, and technological developments. Although differences exist within the various jurisdictions within the American civil court system, the ultimate arbiter for deciding the extent of compensation is the finder of facts, either a judge or a jury. The physiatrist can be comforted that physician testimony provides a reasonable basis for such determinations. Additionally, the definition of an expert in a legal setting generally only indicates that the “expert” has more knowledge and expertise in an area than an average lay person. Although provision of comprehensive medical evaluations, including functional assessments, is a natural part of the practice of physiatry, providing testimony either via a deposition or in a courtroom is beyond the customary education and training of medical schools and residencies in PM&R. Thus, providing effective testimony necessitates individual physiatric understanding of the American judicial system and the requirements to provide testimony. Whether serving as an expert witness for the plaintiff or the defense, the key to credible testimony regarding the extent of damages is a thorough analysis of the case and a careful delineation of the individual’s ongoing care needs. Recommendations for care should not exceed or deviate from the usual clinical recommendations of a physiatrist. Although patients may not have the economic capability to obtain recommended care, the recommendations of a physiatrist in a medicolegal case should be consistent with the regular clinical practice of that physician. The recommendations should be consistent whether the physiatrist has been hired by the plaintiff or the defense. Recommended care needs generally fall into the broad categories of daily, medical, and rehabilitative care. Daily care is needed when a person cannot perform basic activities of daily living, homemaking duties, or basic home maintenance because of the medical condition central to the medicolegal case.
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Impairments affecting daily care needs include impaired mobility, balance, language, and cognition. Ongoing medical care recommendations must deal with chronic medical conditions, including prevention of secondary complications. Because of the subspecialization of medicine, multiple health care providers are generally needed. Functional limitations and medical issues often result in the need for episodic courses of acute medical care or rehabilitation measures, including therapies. The following areas should be covered: 1. Medical care 2. Diagnostic testing 3. Treatment recommendations 4. Therapies 5. Nursing and/or attendant care 6. Case management 7. Adaptive equipment, assistive technology, and medical equipment 8. Transportation 9. Home modifications Thus, delineation of the ongoing care needs of the plaintiff must include a thorough listing of daily, medical, and rehabilitative aspects of care. These aspects of care should be based on current applicable standards of care, not possible future service and technological developments. Standards of practice have been developed by life care planning organizations, including the Life Care Planning Section of the International Academy of Life Care Planners. Following the standards of practice reduces the potential for introduction of bias into the forensic process. Further delineation of the role of physiatrists in medicolegal activities should be guided by the AAPM&R and the American Board of Physical Medicine and Rehabilitation (ABPMR). The involvement of these bodies would be especially important when an individual physiatrist provides opinions outside of the normal practice for physicians in PM&R. Recommendations in medicolegal cases should be based on a thorough assessment of the injured person’s medical condition. Personal medical evaluations of the plaintiff should be undertaken whenever possible, whether the expert is retained by the plaintiff or defense side. A thorough assessment includes an intense review of all available medical records, legal documents, deposition transcripts, school records, and vocational records. Evaluations should be thoroughly documented, including record review, patient clinical information, physical examination, case analysis, and recommendations. The physiatrist must carefully analyze all data and not depend on a referral source for provision of the foundation of testimony, recognizing the risk of being misled or misinformed. The attorney may have a theory of the case that is not consistent with medical analysis.
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Physiatrists doing medicolegal work regarding the extent of damages should attend conferences discussing life care planning and read applicable literature. Certification as a life care planner is also useful because it ensures knowledge of the usual, customary, and standard approach to the development of life care plans [2]. A review of applicable literature regarding life expectancy, including population studies of persons with catastrophic injuries and illnesses, is also needed. Determination of life expectancy should be based on applicable literature, clinical experience, and the specifics of the individual’s medical condition. Persons with catastrophic injuries or illnesses can have very difficult medical courses. Some persons continue to have medical complications after a catastrophic injury or illness, whereas other persons have a stable clinical outcome. This variable can affect life expectancy determinations. Thus, developing a medicolegal component to a physiatric practice necessitates an understanding of the requirements of the legal system regarding assessment of the extent of damage to a plaintiff and its impact on the plaintiff’s future prognosis, including future care needs, vocational potential, and life expectancy. Making an accurate projection of future care needs as delineated in a life care plan requires a thorough review of available records and a careful clinical evaluation. The physiatrist must make an independent determination of the case, free from bias from the referring attorney [1,3]. Medical opinions must be limited to the physiatrist’s areas of expertise and be based on a solid medical foundation resulting from the physician’s clinical experience and review of applicable medical literature [4]. A thorough understanding of the case and the needs and expectations of the legal system enhances the credibility of the expert physician witness. With regard to the case of “Billie” as an example, the ongoing care needs for a 4-year-old boy with HIE and global developmental delay are extensive and include providing for his ongoing daily, medical, and rehabilitative care needs. Goals of his life care plan include preventing complications, enhancing his quality of life, maximizing the rehabilitation potential, and improving his life expectancy. A physician specializing in PM&R with experience in taking care of such children is uniquely qualified to provide the medical foundation for such a life care plan and to provide medical testimony as needed. Estimating the life expectancy for Billie is difficult because the available medical literature does not reflect current technology and medical care provision or the impact from the level of care routinely included in life care plans. Using actuarial tables from population
studies is fraught with potential errors and biases because the populations studied may be markedly different than the child being evaluated for litigation. Looking at the case specifics is also important. Some children with HIE have very complicated initial courses but then become relatively medically stable thereafter. Other children have ongoing, frequent medical complications requiring repeated acute hospitalizations and extensive ongoing medical care. Providing a life expectancy determination for these children is more difficult because of the greater likelihood of a lifethreatening condition at an earlier age that may adversely affect their life expectancy. The admissibility of medical testimony is ultimately the responsibility of the judge handling Billie’s case. Variability exists in judges’ comfort with the admission of medical testimony. Federal courts generally maintain a higher standard than state courts as evidenced by previous cases, including Daubert versus Merrell Dow Pharmaceuticals and Kumho Tire Co versus Carmichael [5]. Requirements include the expert’s use of an accepted methodology for making scientific determinations. The cost projections for care for Billie should reflect already provided care costs. However, there is generally a significant difference between charges listed on medical and hospital bills and reimbursement provided, especially by insurance companies. Whether charges or payments are recognized by the court is variable depending on the jurisdiction and state or federal law. Additionally, it often takes an economist to determine future cost projections and the associated present-day value. A physiatrist projecting future care needs should not make recommendations beyond his/her normal clinical recommendations. The recommendations should provide for the reasonable and medically necessary care that Billie will need over his lifetime to meet his daily, medical, and rehabilitative care needs. References 1. Bonfiglio RP. The role of the physiatrist in life care planning. In: Weed RO, Berens DE, eds. Life Care Planning and Case Management Handbook. 3rd ed. Boca Raton, FL: CRC Press; 2010; 17-26. 2. International Association of Rehabilitation Professionals. International Academy of Life Care Planners standards of practice. Available at: http://www.rehabpro.org/sections/ialcp/focus/ standards/ialcpSOP_pdf; 2009. Accessed December 11, 2014. 3. Weed RO, Berens DE. Ethical issues of the life care planner. In: Weed RO, Berens DE, eds. Life Care Planning and Case Management Handbook. 3rd ed. Boca Raton, FL: CRC Press; 2010; 823-832. 4. Council on Ethical and Judicial Affairs, American Medical Association. American Medical Association code of medical ethics. Chicago, IL: American Medical Association. 5. O’Brien MC. What counts as expert medical testimony? Virtual Mentor 2004;6. Available at: http://virtualmentor.ama-assn.org/2 004/12/hlaw1-0412.html. Accessed December 11, 2014.
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Commentary from Richard D. Zorowitz, MD The Physiatrist and the Courts: The Evidence As I See It The case of a boy born with HIE should not come as a surprise when presented to the physiatrist. We often see patients with acquired brain injuries, spinal cord injuries, limb deficiencies, and musculoskeletal and neuromuscular conditions, to name a few. When we treat these patients, we use the best evidence-based care, so when we are faced with medical-legal issues of these patients, it still is essential to apply standards of care that are consistent with medical evidence. As a physiatrist who has served as a plaintiff and defense expert witness for the past 20 years, and who also chairs the Clinical Practice Guidelines Committee of AAPM&R, it only seems natural to address the issues posed in this forum. To address these issues, I have elected to comment on each of the questions posed by Drs Kirschner and Katz. The following responses represent my personal opinions and viewpoints and do not reflect those of the AAPM&R. 1. What credentials should be required to be considered an expert for life care planning? What is the proper role for professional societies or licensing boards to take in regulating life care planning and other expert witness testimonies? Life care planning is a logical extension of physiatry [1]. Life care planning involves a methodologic analysis of medical records resulting in formulation of diagnoses and associated impairments, activity limitations, and participation restrictions. Life care plans quantify the ongoing costs of goods and services resulting from these medical conditions that these persons require throughout the duration of their care. In its code of conduct, AAPM&R states only that “When called upon to serve as an expert witness, the physiatrist may testify as desired but only within her/ her approved areas of expertise and within the scope and knowledge of his/her training and practice” [2]. However, neither the AAPM&R nor the ABPMR should prescribe a specific role that the physiatrist may play in medical-legal affairs. In fact, this task is usually left to the legal system, when a physiatrist is deemed an expert witness by the court. However, if a physiatrist wishes to act as a life care planner, he or she should obtain the appropriate training to do so. The International Commission on Health Care, a body that governs the certification and credentialing of life care planners, has recognized a number of organizations as having curricula, basic standards of practice, and professional credentialing for practitioners [3]. One example of an organization that provides certification and credentialing for expert witnesses is the American Board of Independent Medical Examiners (www.abime.org).
Although the AAPM&R can recommend how physiatrists should conduct themselves when acting as expert witnesses or life care planners, AAPM&R and ABPMR should not provide professional oversight or peer review of testimony, as other specialties have decided to do. In my opinion, it is the responsibility of AAPM&R and ABPMR to set the standards for what it is to be a physiatrist and to look out for our interests. It is not the role of these bodies to dictate the activities in which the physiatrist legitimately may use his/her expertise nor “critique” his or her performances in these roles. Such oversight amounts to a professional “police force.” However, this is not to say that there should not be any standards for serving as an expert witness or life care planner. In serving in these roles, the physiatrist should be familiar with the best evidence of the issues of which he or she is asked to opine, or he or she should not be an expert witness. The physiatrist should know how to critically evaluate the literature, including clinical practice guidelines. The Evidence and Clinical Practice Guidelines Committees of AAPM&R each use methodologies that provide objective evaluations. For research articles, the Grading of Recommendations Assessment, Development and Evaluation (GRADE, www.gradeworkinggroup.org) provides a common, sensible, and transparent approach to grading quality of evidence and strength of recommendations. For clinical practice guidelines, the Appraisal of Guidelines for Research and Evaluation (AGREE II, www.agreetrust. org) evaluates the process of practice guideline development and the quality of reporting. If the physiatrist cannot understand the literature objectively, he or she will appear uninformed, develop a bad reputation, and eventually will not be asked to be an expert witness or life care planner again. Even if a physiatrist does not wish to become a certified life care planner, it does not mean that he or she cannot participate in the process. In my experience as a physiatric expert witness, I have worked in conjunction with nonphysician (usually nurse) life care planners. I recommend the physicians, consultants, therapy services, durable medical equipment, living situations, and other goods and services a patient may need. Once those goods and services have been determined, the life care planner adds other aspects of care I may have omitted and obtains the estimates for the care costs. When the life care plan is complete, I usually endorse the plan as part of an initial or supplementary report. 2. What type of medical evidence is acceptable within a court of law? By definition, admissible evidence is that “which the trial judge finds is useful in helping the trier of fact (a
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jury if there is a jury, otherwise the judge), and which cannot be objected to on the basis that it is irrelevant, immaterial, or violates the rules against hearsay and other objections” [4]. In cases of medical malpractice or negligence, acceptable medical evidence usually must be consistent with the “standard of care” for that situation. The basis of “standard of care” originated in Bolam versus Friern Hospital Management Committee (1957), an English tort law case that lay down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals, known as the Bolam test. The Bolam test states that “Where the defendant has represented him or herself as having more than average skills and abilities, this test expects standards which must be in accordance with a responsible body of opinion, even if others differ in opinion.” In other words, the Bolam test states that if a doctor reaches the standard of a responsible body of medical opinion, he or she is not negligent [5]. In making this decision, a jury generally considers the defendant’s conduct in light of what the defendant actually knows, has experienced, or has perceived [6]. In the current medical-legal climate, clinical practice guidelines usually are sought to form the foundation of “standard of care.” Clinical practice guidelines are defined as “statements that include recommendations intended to optimize patient care. They are informed by a systematic review of evidence and an assessment of the benefits and harms of alternative care options.” [7]. However, despite the fact that guidelines usually are cited as part of medical evidence, most authors of guidelines do not wish them to be used as such. For example, the ninth edition of the American College of Chest Physicians Guideline for Antithrombotic Therapy and Prevention of Thrombosis contains the following disclaimer: “Guidelines are intended for general information only, are not medical advice, and do not replace professional medical care and physician advice, which always should be sought for any specific condition.. The ACCP and its officers, regents, governors, executive committee, members and employees (the “ACCP Parties”).disclaim all liability for any damages whatsoever (including, without limitation, direct, indirect, incidental, punitive, or consequential damages) arising out of the use, inability to use, or the results of use of a guideline, any references used in a guideline, or the materials, information, or procedures contained in a guideline, based on any legal theory whatsoever and whether or not there was advice of the possibility of such damages.” [8]. To put this issue into perspective, the physiatric expert witness must ensure that the clinical practice guideline is appropriate for the negligence/malpractice being alleged. More importantly, he or she must
establish that the clinical practice guideline is consistent with the standard of care at the time of the alleged negligence/malpractice, because it is possible that the guideline conflicted with the accepted standard of care or introduced new treatment modalities not available at the time. 3. What is the proper scope of life care planning and the benchmarks that should be used for estimating future costs (particularly given the wide fluctuations and notorious difficulties in uncovering health care costs in general)? By their training, physiatrists are uniquely qualified to deal with persons who have activity limitations and participation restrictions from catastrophic illness, and physiatrists are trained to anticipate the long-term needs of their patients [9]. If a physiatrist becomes a certified life care planner, he or she should work within the code of conduct of the AAPM&R, as previously stated. This means working “within the scope and knowledge of his/her training and practice.” [2]. As with estimating any goods or services, benchmarks for estimating future costs should come from reliable sources. Costs of medical goods and services should be estimated from Medicare, state Medicaid, or other insurance carriers, as appropriate for the patient. Estimates of costs of other goods and services (eg, home modifications or wheelchair vans) should be obtained from at least 3 sources to assess geographic market value. Cost of living increases usually are estimated by averaging those of medical expenses or consumer costs over previous years. 4. What is the proper methodology for estimating life expectancy, given the limitations of actuarial tables and the evolving treatment and changes in health care technologies? Life expectancy tables usually are based on populations, not single patients, at a given period in time. As a result, actuarial tables can predict the average life span of a patient given a single or combination of medical conditions based on the treatment modalities at the time the table was constructed. Aside from using life expectancy tables as a steppingoff point, there really is no scientific way to estimate an individual patient’s prognosis. The only methodology for estimating life expectancy is to take the number from the actuarial table and estimate how medical comorbidities not taken into account in the life expectancy table affect the patient’s prognosis. If the patient is a candidate for treatments or technologies not taken into account in the life expectancy table, an estimate of how these modalities affect an individual’s life span needs to be added. In conclusion, the physiatrist can be an effective expert witness and life care planner within his or her area of expertise. He or she should be educated and have some formal credentials to be considered an expert for life care planning. The same may be said of
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becoming an expert witness. AAPM&R and the ABPMR should recommend how the physiatrist should conduct himself or herself in the legal arena but should not play a role in regulating life care planning or expert witness testimony. The physiatrist should know how to access the best evidence to use in his or her arguments. He or she should know how to estimate life expectancy and costs for future care of a given patient. By performing all of these tasks, the physiatrist can play a vital role in medical issues that end up in the legal system. References 1. Gonzales JG, Zotovas A. Life care planning: A natural domain of physiatry. PM R 2014;6:184-187. 2. American Academy of Physical Medicine and Rehabilitation. Code of conduct. V. Relationships with community and government. Available at: www.aapmr.org/about/who-we-are/Pages/aapmr-codeof-conduct2.aspx#V. Accessed December 11, 2014.
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3. Weed RO, Berens DE. Credentialing and other issues in life care planning. In: Weed RO, Berens DE, eds. Life Care Planning and Case Management Handbook. 3rd ed. Boca Raton, FL: CRC Press; 2010; 935-940. 4. The Free Dictionary by Farlex. Admissible evidence. Available at: http://legal-dictionary.thefreedictionary.com/admissibleþevidence. Accessed December 11, 2014. 5. Bolam v Friern Hospital Management Committee. Available at: http://en.wikipedia.org/wiki/Bolam_v_Friern_Hospital_Management_ Committee. Accessed December 11, 2014. 6. Standards of care and the “reasonable person.” Available at: http://injury.findlaw.com/accident-injury-law/standards-of-careand-the-reasonable-person.html. Accessed December 11, 2014. 7. Institute of Medicine. Clinical practice guidelines we can trust. Washington, DC: The National Academies Press; 2011. 8. Disclaimer. Antithrombotic Therapy and Prevention of Thrombosis, 9th ed: American College of Chest Physicians Evidence-Based Clinical Practice Guidelines. Chest 2012;141(2 suppl):1S. 9. Bonfiglio RP. The role of the physiatrist in life care planning. In: Weed RO, Berens DE, eds. Life Care Planning and Case Management Handbook. 3rd ed. Boca Raton, FL: CRC Press; 2010; 17-25.
Editor’s Note With this column, I bring to a close this wonderful 6-year chapter as editor of the PM&R Ethical Legal column. I would like to thank Dr Stuart Weinstein for his confidence in asking me to take on this role and providing me with both his support and a wide berth in developing it. I am also indebted to Cathy Mendelsohn and Nicole Egan, our editorial staff from PM&R, for their terrific and unfailingly gracious support. It has been a privilege and a joy for me to shepherd this column as part of the inaugural editorial staff of PM&R. I also believe that there is a time to move on, both for me personally and for the column’s evolution, and to allow fresh new perspectives to emerge. I have every confidence that the next feature editor, Debjani Mukherjee, PhD, will provide such invigorating guidance. Dr Mukherjee is a clinical psychologist by training, with particular expertise in brain injuries and crosscultural issues. Her PhD thesis in the late 1990s involved mining, through in-depth interviews and qualitative methods, the themes that emerged in a difficult case that culminated in the withdrawal of life-sustaining treatment of a young woman with severe traumatic brain injury. She participated in a working group at that time, organized by the Rehabilitation Institute of Chicago (RIC) Donnelley Family Disability Ethics Program and the Hasting Center, and helped to co-edit the publication that resulted, entitled “Mapping the Moral Landscape: Families and Persons with Traumatic Brain Injury” (Brain Inj Source 2003;6:8-21). At that point she committed to pursuing further training in clinical medical ethics and went on to
complete a fellowship and senior fellowship at the University of Chicago MacLean Center and was an ethics consultant at a long-term care county facility, Oak Forest Hospital of Cook County. From there she went to France for a year to assist in developing a nascent government-sponsored clinical medical ethics program at the Centre D’ethique Clinique in Paris. In 2004 she returned to the United States as a staff member of the RIC Donnelley Family Disability Ethics Program, a program I directed at the time. With one hiatus (in 20062007) when she was awarded a Fulbright Fellowship to research in India the lived experience of persons with traumatic brain injury there, I had the privilege of working closely with Dr Mukherjee until December 2009 when I left RIC to pursue my work in health care reform. Dr Mukherjee is currently the director of the (renamed) RIC Donnelley Ethics Center and has shepherded the program in new and exciting directions, while also enhancing the interdisciplinary team of ethics staff members. I will leave it to her to introduce you to her staff over time, as they will all be involved in various ways in helping her shape future columns, but I can’t think of anyone better equipped to take the reins of the column and move it forward. I am also pleased to announce that the journal has agreed to develop an open access portal on the journal Web site for the ethics columns, so they can be readily available as educational resources for health care professional training programs. With gratitude and best wishes, Kristi L. Kirschner, MD
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Disclosure R.T.K. Department of Physical Medicine and Rehabilitation, Washington University School of Medicine, St. Louis, MO Disclosure related to this publication: expert testimony R.P.B. Department of Physical Medicine and Rehabilitation, Temple Medical School, Philadelphia, PA Disclosure: nothing to disclose R.D.Z. Department of Physical Medicine and Rehabilitation, The Johns Hopkins University School of Medicine, Baltimore, MD Disclosure: nothing to disclose
K.L.K. Departments of Medical Humanities and Bioethics and Physical Medicine and Rehabilitation, Northwestern University Feinberg School of Medicine, 750 N Lake Shore Dr, Chicago, IL 60611; Schwab Rehabilitation Hospital, Chicago, IL. Address correspondence to: K.L.K.; email: [email protected] Disclosures: member, Physicians for a National Health Program; board trustee for Access Living of Chicago; board trustee for Community Care Alliance of Illinois (CCAI); consulting chief medical officer for People with Disabilities, CCAI
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Ethical Legal
Expert Testimony: Implications for Life Care Planning Contributors: Richard T. Katz, MD, Richard Paul Bonfiglio, MD, Richard D. Zorowitz, MD Feature Editor: Kristi L. Kirschner, MD Feature Editor Introduction For better or worse, the U.S. malpractice justice system relies on physicians who are willing to provide expert witness testimony. Historically this task has fallen into a no-man’s land, in that it is not under the auspices of either state medical licensing boards or professional associations. In the past, doctors could hang out their shingle advertising themselves as “experts,” and the onus fell on lawyers to establish or discredit expertise and testimony. In the past 2 decades this practice has begun to change, prompted by a series of 3 U.S. Supreme Court cases that challenged the pre-existing standards for establishing scientific evidence in the courtroom [1]. In 1997, the American Medical Association (AMA) passed a resolution stating that expert witness testimony is considered to be under the practice of medicine and therefore is subject to peer review [2]. The subsequent scope and purview of state licensing boards in disciplining medical expert witnesses for unprofessional or fraudulent testimony have been mixed [3]. Some states are enacting restrictions with regard to who can testify as an expert (for example, Florida requires that out-of-state physicians apply for a certificate). In 2011, the AMA proposed further restrictions, outlining model legislation for expert testimony and recommending that experts be “recognized by the American Board of Medical Specialties or an equivalent board, be in active medical practice in the same discipline as the defendant or have devoted a substantial portion of time teaching at an accredited medical school in relation to the medical care at issue within five years of the defendant’s alleged negligence” [4]. Professional associations have also gotten involved in varying degrees. The American Association of Neurological Surgeons [5], American Academy of Orthopedic Surgeons (AAOS) [6], and American College of Emergency Medicine [7] have been quite active in adopting guidelines and peer review for expert witness testimony. AAOS
has gone so far as to establish an Expert Witness Program that launched in 2004 with easily accessible materials on the Web site to clarify the duties of the expert orthopedic surgeon witness, specifically regarding AAOS’ goal “of providing complete, objective and scientifically based opinions in legal matters that affect patients and AAOS members” [6]. The American College of Emergency Medicine explicitly recommends that expert witnesses be willing to submit their testimony for peer review. The American Academy of Physical Medicine and Rehabilitation (AAPM&R) was among the first to address the issue, with a 1992 position paper addressing general guidelines and standards; this position paper was most recently revisited and renewed without changes by the Board of Governors in August 2012 [8]. The AAPM&R code of conduct further specifies that “when called upon to serve as an expert witness, the physiatrist may testify as desired but only within her/her approved areas of expertise and within the scope and knowledge of his/her training and practice” [9]. Not surprisingly, physiatrists are particularly in demand when a case involves questions of extent of disability or life care planning and future expenses. I was pleased to be approached by Dr Richard Katz, a physiatrist on the faculty of Washington University School of Medicine in St Louis, Missouri, who has been involved in expert witness testimony for more than 20 years. He proposed the following case and questions for discussion: A malpractice case involves a prototypical story of a young boy we will call Billie, whom the plaintiff alleges sustained a brain injury as a result of obstetrical malpractice. Billie, who was born with hypoxic ischemic encephalopathy (HIE), is now 4 years old. He had neonatal seizures, and early magnetic resonance images showed lentiform and ventral thalamic nuclei changes
1934-1482/$ - see front matter ª 2015 by the American Academy of Physical Medicine and Rehabilitation http://dx.doi.org/10.1016/j.pmrj.2014.12.002
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suspicious for HIE. He was managed acutely in the neonatal intensive care unit (NICU) with ventilator management, fluids, antibiotics, phenobarbital, and hyperalimentation. Procedures included peripherally inserted central catheter placement, umbilical line, percutaneous endoscopic gastrostomy (PEG) tube placement, and circumcision. He remained in the NICU for 3 weeks. Subsequent examinations revealed that Billie has spastic quadriplegia, as well as severe developmental delay. He rolls in both directions, reaches for objects with both hands, and sits up briefly, but he cannot sit without support. He is dependent on others for all activities of daily living. He likely has ongoing seizures but is taking no antiseizure medication. He continues to receive PEG tube feedings. He takes a proton pump inhibitor for gastroesophageal reflux disease. Other complications include spasticity, otitis media, dental grinding, left esotropia, drooling, hospitalizations for respiratory infections, and constipation. He sleeps through the night without awakening. A physiatrist is asked to prepare a life care plan. Questions for Consideration What credentials should be required to be considered an expert witness, including life care planning? What is the proper role for professional societies or licensing with regard to regulating expert witness testimonies? What type of medical evidence is acceptable within a court of law? What is the proper scope of life care planning and the benchmarks that should be used in estimating future costs (particularly given the wide fluctuations and notorious difficulties in uncovering health care costs in general)? What is the proper methodology for estimating life expectancy, given the limitations of actuarial tables and the evolving treatment and changes in health care technologies? To help us address these questions, I have invited the following commentators: 1. Dr Richard T. Katz, professor of Clinical Neurology (PM&R), Washington University School of Medicine; Fellow, American Board of Physical Medicine and
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Rehabilitation; fellow, American Board of Independent Medical Examiners; fellow, American Board of Electrodiagnostic Medicine; Section Editor, AMA Guides, sixth edition 2. Dr Richard Paul Bonfiglio, clinical assistant professor of Physical Medicine and Rehabilitation, Temple Medical School, Philadelphia, PA 3. Dr Richard D. Zorowitz, associate professor of Physical Medicine and Rehabilitation, The Johns Hopkins University School of Medicine, Baltimore, MD; chairman, Department of Physical Medicine and Rehabilitation, Johns Hopkins Bayview Medical Center, Baltimore, MD; chairman, Clinical Practice Guidelines Committee, American Academy of Physical Medicine and Rehabilitation As always, we welcome your comments or suggestions for future columns! References 1. Kassirer JP, Cecil JS. Inconsistency in evidentiary standards for medical testimony: Disorder in the courts. JAMA 2002;288:13821387. 2. American Medical Association. Report 18 of the Board of Trustees of the American Medical Association (1-98): Expert witness testimony (Reference Committee B). Available at: www.aapl.org/AMA_ expert_witness.htm. Accessed December 11, 2014. 3. Bal BS. The expert witness in medical malpractice litigation. Clin Orthop Relat Res 2009;467:383-391. 4. Gallegos A. Expert witnesses on trial. August 1, 2011. Available at: www.amednews.com/article/20110801/profession/308019938/4/. Accessed December 11, 2014. 5. American Association of Neurological Surgeons. Rules for neurosurgical medical/legal expert opinion services. Revised March 22, 2006. Available at: https://www.aans.org/en/About%20AANS/ w/media/A5BC91F9297D4AF98D31ABD48C42C076.ashx. Accessed December 11, 2014. 6. American Academy of Orthopaedic Surgeons. AAOS expert witness program. Available at: http://www3.aaos.org/member/expwit/ expertwitness.cfm. Accessed December 11, 2014. 7. American College of Emergency Physicians. Expert witness guidelines for the specialty of emergency medicine. Available at: www. acep.org/Clinical—Practice-Management/Expert-Witness-Guidelinesfor-the-Specialty-of-Emergency-Medicine/. Accessed December 11, 2014. 8. American Academy of Physical Medicine and Rehabilitation. AAPM&R expert witness position paper. www.aapmr.org/practice/ resources/positionpapers/AAPMR%20Documents/Expert-WitnessTestimony.pdf. Accessed August 7, 2014. 9. American Academy of Physical Medicine and Rehabilitation. Code of conduct. V. Relationships with community and government. Available at: www.aapmr.org/about/who-we-are/Pages/aapmr-codeof-conduct2.aspx#V. Accessed December 11, 2014.
Commentary from Richard T. Katz, MD Life Care Planning and the Physiatrist The legal system frequently depends on medical expertise for evidence. Life care planning is a type of medical witness testimony that recently has begun to be
provided by physiatrists who may enter the field of forensic medicine. Most life care plans are prepared by professionals other than physicians. In my experience in life care planning over dozens of years, nurses and vocational rehabilitation professionals make up the
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majority of such practitioners. Avenues for training with regard to life care planning include seminars for nurses (eg, at Kelynco University), seminars open to multiple specialties (eg, the University of Florida Life Care Planning Course), textbooks such as the Life Care Planning and Case Management Handbook, third edition, by Weed and Berens, and courses held by trade organizations (eg, the International Association of Rehabilitation Professionals). Two physiatrists sit on the faculty of the University of Florida Life Care Planning course. Methodology The material within a life care plan is generally not new to a physiatrist. The following 4 formulative steps are used to create such a document: 1. Determination of the extent and sequelae of the patient’s physical and cognitive impairments 2. Estimation of the patient’s prognosis 3. Estimation of the need for and benefit of further medical and rehabilitative interventions 4. Calculation of the costs of future personal needs (eg, wheelchairs, orthopedic equipment, home furnishings and modifications, medical supplies, and recreational equipment) Generally, the only information that a physiatrist might not be familiar with is the cost of various items. Prior to the advent of the Internet, soliciting prices for services from various vendors was difficult, but now the price of most items and services can be found online. Thus most physiatrists have no difficulty slipping into the role of life care planner because we have extensive experience in the chronic care and needs of persons with a wide variety of physical and cognitive disabilities. As for the credentials of other professionals, the level of appropriate expertise varies widely. Many life care planners who are not physicians may have taken a course in the construction of life care plans but have little experience in the needs of people with chronic disabilities. In reality, the mathematical sophistication of a life care plan is rather simpledon a par with construction of an annual home budget on a spreadsheet. One critical difference between the physician and nonphysician life care planner is that many states have statutes indicating that the determination of life expectancy cannot be performed by a person who is not a physician. Thus many life care plan preparers who are not physicians either simply use U.S. Census data for survival or consult a physiciandoften a physician who knows little or nothing about estimating life expectancy. When constructing a life care plan, one creates a yearly “budget” and then multiples the annual cost over the life expectancy of the patient. Some items may be one-time expenses, but these items can simply be amortized over the lifetime of the patient.
Life Expectancy One of the major shortfalls in physiatrist expert witness testimony with regard to life care planning is the nonscientific estimation of life expectancy. Most physiatrists have not been trained in life expectancy prognostication. Life expectancy is not a “guess” when a particular person will perish. Life expectancy is a specific statistical concept. If one takes a particular group of peopledfor example, white males born in 1956dlife expectancy is the average number of years that the members of the group will survive. This average is approximately the same amount of time until 50% of the persons in the group have died. This calculation answers a key question when formulating a life care plandhow many years will need to be covered in the budgeting? It also answers a key question for the court of law: “When is it more likely than not that the child will no longer be alive?” The basis for estimating life expectancy is to consult the literature about life expectancy for a particular diagnostic group. For example, life expectancy literature has been summarized for children with cerebral palsy, spinal cord injury, and traumatic brain injury. Unfortunately, some experts prognosticate life expectancy without adequate training and “shoot from the hip” or “make up” life expectancy figures when offering a life expectancy opinion. A person who does not understand life tables and statistical concepts such as standardized mortality ratios should not offer life expectancy opinions. Physicians who do not thoroughly review relevant medical and scientific data about life expectancy for the particular diagnosis in question should not offer an opinion [1]. To do otherwise is merely speculation and does not meet the necessary standard for expert testimony within a court of law [2]. One common error is to use the U.S. Census life expectancy documents, which report life expectancy for the entire U.S. population based on the person’s age, gender, and race (eg, white/black/Hispanic). Such information is useful for estimating life expectancy for large groups of Americans but not for persons with a severe medical illness. Ill-informed physicians argue that “all types of people” are included in the U.S. Census and thus utilization of the U.S. Census data offers a representative estimation of life expectancy for the child in the vignette provided. This argument is patently wrong, as argued in a recent monograph on life expectancy: “As an illustration, the mean annual income in the United States is a general average. If one wants to estimate the expected annual income of a Fortune 500 chief executive officer (CEO), the general U.S. mean is inappropriate even if all CEOs are included in the larger average. The fact that they are CEOs makes them a distinct subgroup with its own average. Additionally, declaratory statements based on
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nothing more than nonsystematic data, such as from personal clinical experience should be avoided. Similarly, statements to the effect that an individual could live to a normal life expectancy or that the average of a subgroup does not apply to the individual because of alleged but not demonstrably distinguishing characteristics should not be credited, as they merely betray a misunderstanding of the very concept of life expectancy” [3]. Estimation of Personal Care Needs Many life care planners spend extensive time and money precisely pricing every diaper with the false notion that this approach will increase the accuracy of the life care cost projection. In fact, durable and disposable medical goods make up a very small portion of the total life care planning budget. Approximately 85% of the variance in a life care plan will be accurately accounted for if the life care planner appropriately estimates the following variables: The life expectancy of the child (previously discussed) The appropriate level (certified nursing assistant [CNA], licensed practical nurse [LPN], or registered nurse [RN]) and hours of nursing care An appropriate future schedule for therapy services The child in the vignette has a life expectancy of approximately 21 years of age, depending on which articles one favors within the cerebral palsy life expectancy literature. If a life care planner is ignorant of such literature and opines a “normal” life expectancy of 80 years based on the U.S. Census data, this estimate will more than triple the cost of the life care plan [4]. When is a CNA versus a more skilled level of nursing care needed? The answer to this question depends on the presence or absence of the need for skilled nursing tasks and whether the family would agree to participate in some of the care. For example, performing daily living tasks such as cleaning, toileting, mobility, and hygiene requires the services of a CNA. The need for a tracheostomy tube or deep suctioning requires the care of an LPN or RN. Although it is not obvious to physicians who are unfamiliar with nursing staff salaries, an LPN makes double and an RN triple the salary of a CNA. Annual budgets for nursing care are often 6 figures per year, dwarfing all the other cost centers in a life care plan. Thus the appropriate budgeting of the appropriate type and amount of nursing type care is a vital cost center to prognosticate future needs accurately. The third point deals with therapeutic interventions. How much therapy is beneficial for a child with cerebral palsy? To what age should such therapies be scheduled? Some life care planners advocate that a child receive physical therapy thrice weekly for the remainder of life.
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Is this recommendation scientifically valid? This argument stems from an unproven concept that “If the child receives more or better care, s/he will live longer.” Contradictory information exists as to what more or better care truly is in children with cerebral palsy. For example, does placement affect survival (home versus institution)? Some articles suggest that institutionalized patients live longer, whereas others suggest that home care promotes longer survival [4]. Such opinion flies in the face of recent evidence, which disproves the adage “more care is better care.” As noted in Consumer Reports Health, “For many consumers, good health care means seeing as many specialists as possible. It may also mean undergoing rounds of tests and, if a serious illness is diagnosed, prolonged hospital stays and extensive treatment. Though the idea that more health care is better seems to make sense, recent research has shown that none of the above necessarily helps you live better or longer. In fact, too much medical care might shorten your life” [5] JAMA Internal Medicine (formerly entitled Archives of Internal Medicine) now includes a monthly column that highlights this worn-out idea that “more care is better care” with periodic articles showing inferior outcomes compared with more intensive or aggressive care. What does the literature show with regard to therapy and cerebral palsy? Physiatrists may be surprised to note the weakness of the medical literature in this regard [6]. Although scientific data supporting physical therapy in persons with cerebral palsy is weak, even uncontrolled studies show no treatment effect in the most severely impaired children. In the most severely impaired children, developmental milestones plateau by approximately 6 years of age. Is there any scientific justification, then, for advocating thrice-weekly therapy services for the patient’s entire life? Other Items Although life care planners may argue extensively about the costs of particular durable and disposable medical goods, these prices are readily found on the Internet. Surprisingly, the costs for such items actually make up a small portion of the total cost of a life care plan. Although medical procedures may vary widely in cost, the cost of standard services such as physical therapy (and their discounted prices) can generally be obtained by calling vendors in the local area of the patient. It is widely recognized that prices vary widely, and the ability to determine qualitydindependent of pricedremains elusive. Next Steps? In my opinion, the AAPM&R needs to sponsor a standard curriculum for the construction of life care plans and expert testimony. There simply is not enough “new material” in the field of life care planning to warrant any type of “subspecialty exam.” However, a certificate
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course, similar to the Impairment and Disability Seminar offered by AAPM&R for approximately 10 years beginning in early 1990s, would be an appropriate educational vehicle. In addition, I believe certain steps need to be implemented by our specialty: 1. Recognize that physiatric forensic medicine and the construction of life care plans by physiatrists is an important growing area of service within our field. 2. Ensure that all expert opinion adheres to legal standards of evidence within a court of law. Readers are referred to expert materials for what is constituted as meeting the standard of evidence [7,8]. Physiatrists should have current experience and ongoing knowledge in the area in which are testifying. Review of the facts should be fair and impartial, and physicians should thoroughly review relevant medical and scientific data before offering an opinion. Opinions should be based on credible medical literature. As stated by Field and Carey [9], “When expert witnesses not merely disagree, but misrepresent data, misrepresent their background credentials and expertise, and offer egregiously false testimony, the legal process is violated and verdicts may be distorted.” 3. Physician testimony of opinions that appear to be questionable should be subjected to peer review. Physicians who offer “egregious” testimony should be sanctioned. Professional organizations have an important role to play in the standards of expert witness testimony. As Kesselheim and Studdert [10] note, they have “access to high levels of technical expertise, occupy powerful vantage points within their fields, and are often engaged in relevant pursuits such as synthesis of evidence of best practices.” Conclusion Life care planning is not a subspecialty of physiatry. After attending a training seminar, any physiatrist could
readily carry out life care planning. The problem in the field at present is that physicians may offer opinions that would not withstand the rigors of peer review and sometimes offer no scientific basis for their life expectancy opinions. It is time for the specialty to address the quality of professional opinions of physiatrists when they do not stand up to such scientific rigor. Review panels have been set up by professional organizations to regulate physician expert witness testimony in several specialties of medicine, and it is time for our specialty to do the same. Physicians who offer unscientific opinion should be censured. Physiatric expert testimony should be expected to meet evidentiary standards for medical testimony and not rely on personal opinion and innuendo.
References 1. Williams MA, Mackin GA, Beresford HR, et al. American Academy of Neurology qualifications and guidelines for the physician expert witness. Neurology 2006;66:13-14. 2. Kassirer JP, Cecil JS. Inconsistency in evidentiary standards for medical testimony: Disorder in the courts. JAMA 2002;288: 1382-1387. 3. Vachon PJ, Sestier F. Life expectancy determination. Phys Med Rehabil Clin N Am 2013;24:539-551. 4. Katz RT. Are children with cerebral palsy and developmental disability living longer? J Dev Phys Disabil 2009;21:409-424. 5. Consumer Reports Health. Too much treatment? Aggressive medical care can lead to more pain with no gain. Available at: https:// www.jsmf.org/meetings/2008/july/consumerreports_org_health_ doctors-hospitals_hospita.pdf. Accessed December 11, 2014. 6. Suoranta A, Malmivaara J, Makela A, et al. Effectiveness of physiotherapy and conductive education interventions in children with cerebral palsy: Focused review. Am J Phys Med Rehabil 2008;87: 478-501. 7. Jerrold L. Role of the expert witness. Surg Clin N Am 2007;87: 889-901. 8. Committee on Ethics. Expert testimony. Obstet Gynecol 2007;110: 445-446. 9. Field AAD, Carey WD. Expert witness malfeasance: How should specialty societies respond? Am J Gastroenterol 2005;100: 991-995. 10. Kesselheim AS, Studdert DM. Role of professional organizations in regulating physician expert witness testimony. JAMA 2007;298: 2907-2909.
Commentary from Richard Paul Bonfiglio, MD Ethical Issues For Physiatrists Determining Damages in Medicolegal Cases. Physicians practicing physical medicine and rehabilitation (PM&R/ physiatry) by their education, training, and experience are uniquely qualified to evaluate the nature and extent of medical conditions of persons with catastrophic injuries and illnesses and the resultant functional limitations, extent of impairments, medical complications, and prognoses. Physiatrists routinely work with persons who have sustained brain and spinal
cord injuries, strokes, amputations, burns, deconditioning from organ system failures, and chronic pain conditions. Physiatrists are also regularly part of teams involved in the care of these persons along with rehabilitation nurses, therapists, psychologists, case managers, physicians in other medical specialties, and others as required by the needs of the individual. Utilizing this knowledge about the care of persons with catastrophic medical conditions and associated impairments allows physiatrists to provide an analysis of the extent of damages of plaintiffs in medicolegal matters.
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Such analysis may include provision of the medical foundation or criticism for a life care plan and a determination of the injured person’s prognosis, including possible future medical complications, vocational potential, and life expectancy. For persons who have experienced catastrophic injuries and illnesses, daily, medical, and rehabilitative care needs may greatly exceed coverage by health insurance. When potential legal liability exists, provision of a thorough assessment by a physiatrist can provide the basis for determining the extent of ongoing care needs and prognosis, which is an essential element of a plaintiff’s legal case by establishing the extent of damages [1]. However, projecting these care needs over an individual patient’s lifetime can be a daunting task. The provision of health care is an ever-evolving science because of changes in applicable laws, insurance and other funding sources requirements and expectations, service delivery, and technological developments. Although differences exist within the various jurisdictions within the American civil court system, the ultimate arbiter for deciding the extent of compensation is the finder of facts, either a judge or a jury. The physiatrist can be comforted that physician testimony provides a reasonable basis for such determinations. Additionally, the definition of an expert in a legal setting generally only indicates that the “expert” has more knowledge and expertise in an area than an average lay person. Although provision of comprehensive medical evaluations, including functional assessments, is a natural part of the practice of physiatry, providing testimony either via a deposition or in a courtroom is beyond the customary education and training of medical schools and residencies in PM&R. Thus, providing effective testimony necessitates individual physiatric understanding of the American judicial system and the requirements to provide testimony. Whether serving as an expert witness for the plaintiff or the defense, the key to credible testimony regarding the extent of damages is a thorough analysis of the case and a careful delineation of the individual’s ongoing care needs. Recommendations for care should not exceed or deviate from the usual clinical recommendations of a physiatrist. Although patients may not have the economic capability to obtain recommended care, the recommendations of a physiatrist in a medicolegal case should be consistent with the regular clinical practice of that physician. The recommendations should be consistent whether the physiatrist has been hired by the plaintiff or the defense. Recommended care needs generally fall into the broad categories of daily, medical, and rehabilitative care. Daily care is needed when a person cannot perform basic activities of daily living, homemaking duties, or basic home maintenance because of the medical condition central to the medicolegal case.
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Impairments affecting daily care needs include impaired mobility, balance, language, and cognition. Ongoing medical care recommendations must deal with chronic medical conditions, including prevention of secondary complications. Because of the subspecialization of medicine, multiple health care providers are generally needed. Functional limitations and medical issues often result in the need for episodic courses of acute medical care or rehabilitation measures, including therapies. The following areas should be covered: 1. Medical care 2. Diagnostic testing 3. Treatment recommendations 4. Therapies 5. Nursing and/or attendant care 6. Case management 7. Adaptive equipment, assistive technology, and medical equipment 8. Transportation 9. Home modifications Thus, delineation of the ongoing care needs of the plaintiff must include a thorough listing of daily, medical, and rehabilitative aspects of care. These aspects of care should be based on current applicable standards of care, not possible future service and technological developments. Standards of practice have been developed by life care planning organizations, including the Life Care Planning Section of the International Academy of Life Care Planners. Following the standards of practice reduces the potential for introduction of bias into the forensic process. Further delineation of the role of physiatrists in medicolegal activities should be guided by the AAPM&R and the American Board of Physical Medicine and Rehabilitation (ABPMR). The involvement of these bodies would be especially important when an individual physiatrist provides opinions outside of the normal practice for physicians in PM&R. Recommendations in medicolegal cases should be based on a thorough assessment of the injured person’s medical condition. Personal medical evaluations of the plaintiff should be undertaken whenever possible, whether the expert is retained by the plaintiff or defense side. A thorough assessment includes an intense review of all available medical records, legal documents, deposition transcripts, school records, and vocational records. Evaluations should be thoroughly documented, including record review, patient clinical information, physical examination, case analysis, and recommendations. The physiatrist must carefully analyze all data and not depend on a referral source for provision of the foundation of testimony, recognizing the risk of being misled or misinformed. The attorney may have a theory of the case that is not consistent with medical analysis.
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Physiatrists doing medicolegal work regarding the extent of damages should attend conferences discussing life care planning and read applicable literature. Certification as a life care planner is also useful because it ensures knowledge of the usual, customary, and standard approach to the development of life care plans [2]. A review of applicable literature regarding life expectancy, including population studies of persons with catastrophic injuries and illnesses, is also needed. Determination of life expectancy should be based on applicable literature, clinical experience, and the specifics of the individual’s medical condition. Persons with catastrophic injuries or illnesses can have very difficult medical courses. Some persons continue to have medical complications after a catastrophic injury or illness, whereas other persons have a stable clinical outcome. This variable can affect life expectancy determinations. Thus, developing a medicolegal component to a physiatric practice necessitates an understanding of the requirements of the legal system regarding assessment of the extent of damage to a plaintiff and its impact on the plaintiff’s future prognosis, including future care needs, vocational potential, and life expectancy. Making an accurate projection of future care needs as delineated in a life care plan requires a thorough review of available records and a careful clinical evaluation. The physiatrist must make an independent determination of the case, free from bias from the referring attorney [1,3]. Medical opinions must be limited to the physiatrist’s areas of expertise and be based on a solid medical foundation resulting from the physician’s clinical experience and review of applicable medical literature [4]. A thorough understanding of the case and the needs and expectations of the legal system enhances the credibility of the expert physician witness. With regard to the case of “Billie” as an example, the ongoing care needs for a 4-year-old boy with HIE and global developmental delay are extensive and include providing for his ongoing daily, medical, and rehabilitative care needs. Goals of his life care plan include preventing complications, enhancing his quality of life, maximizing the rehabilitation potential, and improving his life expectancy. A physician specializing in PM&R with experience in taking care of such children is uniquely qualified to provide the medical foundation for such a life care plan and to provide medical testimony as needed. Estimating the life expectancy for Billie is difficult because the available medical literature does not reflect current technology and medical care provision or the impact from the level of care routinely included in life care plans. Using actuarial tables from population
studies is fraught with potential errors and biases because the populations studied may be markedly different than the child being evaluated for litigation. Looking at the case specifics is also important. Some children with HIE have very complicated initial courses but then become relatively medically stable thereafter. Other children have ongoing, frequent medical complications requiring repeated acute hospitalizations and extensive ongoing medical care. Providing a life expectancy determination for these children is more difficult because of the greater likelihood of a lifethreatening condition at an earlier age that may adversely affect their life expectancy. The admissibility of medical testimony is ultimately the responsibility of the judge handling Billie’s case. Variability exists in judges’ comfort with the admission of medical testimony. Federal courts generally maintain a higher standard than state courts as evidenced by previous cases, including Daubert versus Merrell Dow Pharmaceuticals and Kumho Tire Co versus Carmichael [5]. Requirements include the expert’s use of an accepted methodology for making scientific determinations. The cost projections for care for Billie should reflect already provided care costs. However, there is generally a significant difference between charges listed on medical and hospital bills and reimbursement provided, especially by insurance companies. Whether charges or payments are recognized by the court is variable depending on the jurisdiction and state or federal law. Additionally, it often takes an economist to determine future cost projections and the associated present-day value. A physiatrist projecting future care needs should not make recommendations beyond his/her normal clinical recommendations. The recommendations should provide for the reasonable and medically necessary care that Billie will need over his lifetime to meet his daily, medical, and rehabilitative care needs. References 1. Bonfiglio RP. The role of the physiatrist in life care planning. In: Weed RO, Berens DE, eds. Life Care Planning and Case Management Handbook. 3rd ed. Boca Raton, FL: CRC Press; 2010; 17-26. 2. International Association of Rehabilitation Professionals. International Academy of Life Care Planners standards of practice. Available at: http://www.rehabpro.org/sections/ialcp/focus/ standards/ialcpSOP_pdf; 2009. Accessed December 11, 2014. 3. Weed RO, Berens DE. Ethical issues of the life care planner. In: Weed RO, Berens DE, eds. Life Care Planning and Case Management Handbook. 3rd ed. Boca Raton, FL: CRC Press; 2010; 823-832. 4. Council on Ethical and Judicial Affairs, American Medical Association. American Medical Association code of medical ethics. Chicago, IL: American Medical Association. 5. O’Brien MC. What counts as expert medical testimony? Virtual Mentor 2004;6. Available at: http://virtualmentor.ama-assn.org/2 004/12/hlaw1-0412.html. Accessed December 11, 2014.
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Commentary from Richard D. Zorowitz, MD The Physiatrist and the Courts: The Evidence As I See It The case of a boy born with HIE should not come as a surprise when presented to the physiatrist. We often see patients with acquired brain injuries, spinal cord injuries, limb deficiencies, and musculoskeletal and neuromuscular conditions, to name a few. When we treat these patients, we use the best evidence-based care, so when we are faced with medical-legal issues of these patients, it still is essential to apply standards of care that are consistent with medical evidence. As a physiatrist who has served as a plaintiff and defense expert witness for the past 20 years, and who also chairs the Clinical Practice Guidelines Committee of AAPM&R, it only seems natural to address the issues posed in this forum. To address these issues, I have elected to comment on each of the questions posed by Drs Kirschner and Katz. The following responses represent my personal opinions and viewpoints and do not reflect those of the AAPM&R. 1. What credentials should be required to be considered an expert for life care planning? What is the proper role for professional societies or licensing boards to take in regulating life care planning and other expert witness testimonies? Life care planning is a logical extension of physiatry [1]. Life care planning involves a methodologic analysis of medical records resulting in formulation of diagnoses and associated impairments, activity limitations, and participation restrictions. Life care plans quantify the ongoing costs of goods and services resulting from these medical conditions that these persons require throughout the duration of their care. In its code of conduct, AAPM&R states only that “When called upon to serve as an expert witness, the physiatrist may testify as desired but only within her/ her approved areas of expertise and within the scope and knowledge of his/her training and practice” [2]. However, neither the AAPM&R nor the ABPMR should prescribe a specific role that the physiatrist may play in medical-legal affairs. In fact, this task is usually left to the legal system, when a physiatrist is deemed an expert witness by the court. However, if a physiatrist wishes to act as a life care planner, he or she should obtain the appropriate training to do so. The International Commission on Health Care, a body that governs the certification and credentialing of life care planners, has recognized a number of organizations as having curricula, basic standards of practice, and professional credentialing for practitioners [3]. One example of an organization that provides certification and credentialing for expert witnesses is the American Board of Independent Medical Examiners (www.abime.org).
Although the AAPM&R can recommend how physiatrists should conduct themselves when acting as expert witnesses or life care planners, AAPM&R and ABPMR should not provide professional oversight or peer review of testimony, as other specialties have decided to do. In my opinion, it is the responsibility of AAPM&R and ABPMR to set the standards for what it is to be a physiatrist and to look out for our interests. It is not the role of these bodies to dictate the activities in which the physiatrist legitimately may use his/her expertise nor “critique” his or her performances in these roles. Such oversight amounts to a professional “police force.” However, this is not to say that there should not be any standards for serving as an expert witness or life care planner. In serving in these roles, the physiatrist should be familiar with the best evidence of the issues of which he or she is asked to opine, or he or she should not be an expert witness. The physiatrist should know how to critically evaluate the literature, including clinical practice guidelines. The Evidence and Clinical Practice Guidelines Committees of AAPM&R each use methodologies that provide objective evaluations. For research articles, the Grading of Recommendations Assessment, Development and Evaluation (GRADE, www.gradeworkinggroup.org) provides a common, sensible, and transparent approach to grading quality of evidence and strength of recommendations. For clinical practice guidelines, the Appraisal of Guidelines for Research and Evaluation (AGREE II, www.agreetrust. org) evaluates the process of practice guideline development and the quality of reporting. If the physiatrist cannot understand the literature objectively, he or she will appear uninformed, develop a bad reputation, and eventually will not be asked to be an expert witness or life care planner again. Even if a physiatrist does not wish to become a certified life care planner, it does not mean that he or she cannot participate in the process. In my experience as a physiatric expert witness, I have worked in conjunction with nonphysician (usually nurse) life care planners. I recommend the physicians, consultants, therapy services, durable medical equipment, living situations, and other goods and services a patient may need. Once those goods and services have been determined, the life care planner adds other aspects of care I may have omitted and obtains the estimates for the care costs. When the life care plan is complete, I usually endorse the plan as part of an initial or supplementary report. 2. What type of medical evidence is acceptable within a court of law? By definition, admissible evidence is that “which the trial judge finds is useful in helping the trier of fact (a
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jury if there is a jury, otherwise the judge), and which cannot be objected to on the basis that it is irrelevant, immaterial, or violates the rules against hearsay and other objections” [4]. In cases of medical malpractice or negligence, acceptable medical evidence usually must be consistent with the “standard of care” for that situation. The basis of “standard of care” originated in Bolam versus Friern Hospital Management Committee (1957), an English tort law case that lay down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals, known as the Bolam test. The Bolam test states that “Where the defendant has represented him or herself as having more than average skills and abilities, this test expects standards which must be in accordance with a responsible body of opinion, even if others differ in opinion.” In other words, the Bolam test states that if a doctor reaches the standard of a responsible body of medical opinion, he or she is not negligent [5]. In making this decision, a jury generally considers the defendant’s conduct in light of what the defendant actually knows, has experienced, or has perceived [6]. In the current medical-legal climate, clinical practice guidelines usually are sought to form the foundation of “standard of care.” Clinical practice guidelines are defined as “statements that include recommendations intended to optimize patient care. They are informed by a systematic review of evidence and an assessment of the benefits and harms of alternative care options.” [7]. However, despite the fact that guidelines usually are cited as part of medical evidence, most authors of guidelines do not wish them to be used as such. For example, the ninth edition of the American College of Chest Physicians Guideline for Antithrombotic Therapy and Prevention of Thrombosis contains the following disclaimer: “Guidelines are intended for general information only, are not medical advice, and do not replace professional medical care and physician advice, which always should be sought for any specific condition.. The ACCP and its officers, regents, governors, executive committee, members and employees (the “ACCP Parties”).disclaim all liability for any damages whatsoever (including, without limitation, direct, indirect, incidental, punitive, or consequential damages) arising out of the use, inability to use, or the results of use of a guideline, any references used in a guideline, or the materials, information, or procedures contained in a guideline, based on any legal theory whatsoever and whether or not there was advice of the possibility of such damages.” [8]. To put this issue into perspective, the physiatric expert witness must ensure that the clinical practice guideline is appropriate for the negligence/malpractice being alleged. More importantly, he or she must
establish that the clinical practice guideline is consistent with the standard of care at the time of the alleged negligence/malpractice, because it is possible that the guideline conflicted with the accepted standard of care or introduced new treatment modalities not available at the time. 3. What is the proper scope of life care planning and the benchmarks that should be used for estimating future costs (particularly given the wide fluctuations and notorious difficulties in uncovering health care costs in general)? By their training, physiatrists are uniquely qualified to deal with persons who have activity limitations and participation restrictions from catastrophic illness, and physiatrists are trained to anticipate the long-term needs of their patients [9]. If a physiatrist becomes a certified life care planner, he or she should work within the code of conduct of the AAPM&R, as previously stated. This means working “within the scope and knowledge of his/her training and practice.” [2]. As with estimating any goods or services, benchmarks for estimating future costs should come from reliable sources. Costs of medical goods and services should be estimated from Medicare, state Medicaid, or other insurance carriers, as appropriate for the patient. Estimates of costs of other goods and services (eg, home modifications or wheelchair vans) should be obtained from at least 3 sources to assess geographic market value. Cost of living increases usually are estimated by averaging those of medical expenses or consumer costs over previous years. 4. What is the proper methodology for estimating life expectancy, given the limitations of actuarial tables and the evolving treatment and changes in health care technologies? Life expectancy tables usually are based on populations, not single patients, at a given period in time. As a result, actuarial tables can predict the average life span of a patient given a single or combination of medical conditions based on the treatment modalities at the time the table was constructed. Aside from using life expectancy tables as a steppingoff point, there really is no scientific way to estimate an individual patient’s prognosis. The only methodology for estimating life expectancy is to take the number from the actuarial table and estimate how medical comorbidities not taken into account in the life expectancy table affect the patient’s prognosis. If the patient is a candidate for treatments or technologies not taken into account in the life expectancy table, an estimate of how these modalities affect an individual’s life span needs to be added. In conclusion, the physiatrist can be an effective expert witness and life care planner within his or her area of expertise. He or she should be educated and have some formal credentials to be considered an expert for life care planning. The same may be said of
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becoming an expert witness. AAPM&R and the ABPMR should recommend how the physiatrist should conduct himself or herself in the legal arena but should not play a role in regulating life care planning or expert witness testimony. The physiatrist should know how to access the best evidence to use in his or her arguments. He or she should know how to estimate life expectancy and costs for future care of a given patient. By performing all of these tasks, the physiatrist can play a vital role in medical issues that end up in the legal system. References 1. Gonzales JG, Zotovas A. Life care planning: A natural domain of physiatry. PM R 2014;6:184-187. 2. American Academy of Physical Medicine and Rehabilitation. Code of conduct. V. Relationships with community and government. Available at: www.aapmr.org/about/who-we-are/Pages/aapmr-codeof-conduct2.aspx#V. Accessed December 11, 2014.
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3. Weed RO, Berens DE. Credentialing and other issues in life care planning. In: Weed RO, Berens DE, eds. Life Care Planning and Case Management Handbook. 3rd ed. Boca Raton, FL: CRC Press; 2010; 935-940. 4. The Free Dictionary by Farlex. Admissible evidence. Available at: http://legal-dictionary.thefreedictionary.com/admissibleþevidence. Accessed December 11, 2014. 5. Bolam v Friern Hospital Management Committee. Available at: http://en.wikipedia.org/wiki/Bolam_v_Friern_Hospital_Management_ Committee. Accessed December 11, 2014. 6. Standards of care and the “reasonable person.” Available at: http://injury.findlaw.com/accident-injury-law/standards-of-careand-the-reasonable-person.html. Accessed December 11, 2014. 7. Institute of Medicine. Clinical practice guidelines we can trust. Washington, DC: The National Academies Press; 2011. 8. Disclaimer. Antithrombotic Therapy and Prevention of Thrombosis, 9th ed: American College of Chest Physicians Evidence-Based Clinical Practice Guidelines. Chest 2012;141(2 suppl):1S. 9. Bonfiglio RP. The role of the physiatrist in life care planning. In: Weed RO, Berens DE, eds. Life Care Planning and Case Management Handbook. 3rd ed. Boca Raton, FL: CRC Press; 2010; 17-25.
Editor’s Note With this column, I bring to a close this wonderful 6-year chapter as editor of the PM&R Ethical Legal column. I would like to thank Dr Stuart Weinstein for his confidence in asking me to take on this role and providing me with both his support and a wide berth in developing it. I am also indebted to Cathy Mendelsohn and Nicole Egan, our editorial staff from PM&R, for their terrific and unfailingly gracious support. It has been a privilege and a joy for me to shepherd this column as part of the inaugural editorial staff of PM&R. I also believe that there is a time to move on, both for me personally and for the column’s evolution, and to allow fresh new perspectives to emerge. I have every confidence that the next feature editor, Debjani Mukherjee, PhD, will provide such invigorating guidance. Dr Mukherjee is a clinical psychologist by training, with particular expertise in brain injuries and crosscultural issues. Her PhD thesis in the late 1990s involved mining, through in-depth interviews and qualitative methods, the themes that emerged in a difficult case that culminated in the withdrawal of life-sustaining treatment of a young woman with severe traumatic brain injury. She participated in a working group at that time, organized by the Rehabilitation Institute of Chicago (RIC) Donnelley Family Disability Ethics Program and the Hasting Center, and helped to co-edit the publication that resulted, entitled “Mapping the Moral Landscape: Families and Persons with Traumatic Brain Injury” (Brain Inj Source 2003;6:8-21). At that point she committed to pursuing further training in clinical medical ethics and went on to
complete a fellowship and senior fellowship at the University of Chicago MacLean Center and was an ethics consultant at a long-term care county facility, Oak Forest Hospital of Cook County. From there she went to France for a year to assist in developing a nascent government-sponsored clinical medical ethics program at the Centre D’ethique Clinique in Paris. In 2004 she returned to the United States as a staff member of the RIC Donnelley Family Disability Ethics Program, a program I directed at the time. With one hiatus (in 20062007) when she was awarded a Fulbright Fellowship to research in India the lived experience of persons with traumatic brain injury there, I had the privilege of working closely with Dr Mukherjee until December 2009 when I left RIC to pursue my work in health care reform. Dr Mukherjee is currently the director of the (renamed) RIC Donnelley Ethics Center and has shepherded the program in new and exciting directions, while also enhancing the interdisciplinary team of ethics staff members. I will leave it to her to introduce you to her staff over time, as they will all be involved in various ways in helping her shape future columns, but I can’t think of anyone better equipped to take the reins of the column and move it forward. I am also pleased to announce that the journal has agreed to develop an open access portal on the journal Web site for the ethics columns, so they can be readily available as educational resources for health care professional training programs. With gratitude and best wishes, Kristi L. Kirschner, MD
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Disclosure R.T.K. Department of Physical Medicine and Rehabilitation, Washington University School of Medicine, St. Louis, MO Disclosure related to this publication: expert testimony R.P.B. Department of Physical Medicine and Rehabilitation, Temple Medical School, Philadelphia, PA Disclosure: nothing to disclose R.D.Z. Department of Physical Medicine and Rehabilitation, The Johns Hopkins University School of Medicine, Baltimore, MD Disclosure: nothing to disclose
K.L.K. Departments of Medical Humanities and Bioethics and Physical Medicine and Rehabilitation, Northwestern University Feinberg School of Medicine, 750 N Lake Shore Dr, Chicago, IL 60611; Schwab Rehabilitation Hospital, Chicago, IL. Address correspondence to: K.L.K.; email: [email protected] Disclosures: member, Physicians for a National Health Program; board trustee for Access Living of Chicago; board trustee for Community Care Alliance of Illinois (CCAI); consulting chief medical officer for People with Disabilities, CCAI
