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W1966236159 abstract "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 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. As always, we welcome your comments or suggestions for future columns! 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 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. 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 simple—on 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 physician—often 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. 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 people—for example, white males born in 1956—life 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 plan—how 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 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. 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. 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? 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 quality—independent of price—remains elusive. 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 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. 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.” 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. 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. 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. 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. 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 life-threatening 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. 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 us" @default.
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W1966236159 title "Expert Testimony: Implications for Life Care Planning" @default.
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