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Personal Injury, Professional Medical Expert Witnesses and Mediation

April 29, 2013

Insurance carriers claim they are paying more per personal injury claim than ever.  Injured claimants, from all reports, are taking home less  per claim than ever.  How can these two opposing trends be both true?

The unfortunate answer:  The cost of processing most personal injury claims is increasing faster than the increased total monies being paid for the claim.

Therefore, monies, including the costs of litigation, going into one end of this funnel, the claims system, are being removed by those who service the funnel at a greater rate than the increased payments and thus result in lower net payments to the claimants.

It would be easy to blame the increased costs upon increased attorneys fees .  But, you would be wrong.  Defense fees are more competitive than ever, and thus lower than ever.  Plaintiff’s attorneys fees, based upon a percentage of recovery,  have remained the same for decades.

Rather it is the remaining other “servicers” of the claims-litigation system that are driving the ever upward spiraling cost of litigation.

Filing and process fees have been increased to help pay for reduced tax revenue required to support the Courts.  Court reporters rates (and usage) have jumped.  Specialist firms in exhibit production are booming and so are their costs for making those expensive exhibits used to entertain and/or inform any jury.  Technology in the courtrooms has also mimicked television in keeping jurors interested in their trials.

But, most of all, in my opinion, it is the increasing use of and cost of the ” professional” medical expert witness that is creating a “cost-crisis” in personal injury litigation.

And, worse, their proliferation is creating another mediation obstacle as well.

Recently, in personal injury mediations, two of the most repetitive and forseeable obstacles interfering with reasonable negotiation between the partes include:  1) the  Claimant’s increased use (and abuse) of letters of protection, “LOP’s”,  and, 2)  the Defendant’s (and insurance carrier’s) increased use of (and abuse by) “professional” medical expert witnesses.

The Plaintiff’s bar has historically found necessary, to a greater or lesser extent, the use of LOP’s simply to obtain treatment for uninsured clients who need treatment.  The abuse of this originally good idea arose when the use went beyond any real need for treatment and instead, became a tactic to artificially increase a claim.  We reported upon this obstacle earlier.  See, Personal Injury, Letters of Protection and Mediation, February 21, 2013

However, the same can be said for the Defense bar in its historical use (and now increasing abuse of use) of “professional witnesses”, particularly in the medical field, as another original good idea gone bad and another obstacle at mediation.

Countering fraud has always been a proper use of a qualified medical expert in any case in which fraud was a fair subject of debate.  The abuse comes when such paid-for testimony is used exclusively for trial or pre-trial tactics to artificially reduce a claim, not truly to contest fraud.

And, an even larger problem: When did the insurance industry begin to actually rely upon such “paid-trial professionals” as a basis for their claims evaluations?

I am not old enough to remember just how or when this “professional witness” thing generally got started.  No doubt it arose, however, when some defense attorney felt that they should at least be “tactically” in a position to be able to counter some “untrustworthy” witness for the Plaintiff, if trial became necessary and simply hired a witness who would disagree with the witness for the Plaintiff.

And, our courts, honoring the assumed honesty in the  medical profession, have long allowed practically any opinion of any physician as long as it was couched in “his/her medical opinion based upon his/her own medical background, training and experience.”  In short, we allow medical types to opine on almost anything medical!

But, such “expert” testimony costs money.  And medical experts, because of their already high-incomes,  of course, clearly cost the most!

In fact, I am quite willing to bet that medical expert testimony, including the retainer, the exam(s), the report(s), the conferences, the deposition, and the trial appearance (or more likely the video-for-trial) is now the single greatest litigation “cost”, to both sides of any personal injury matter.

And, thus the crux of the real problem:  Our juries are presently generally required to decide all medical issues only with “expert help”; testimony of a qualified healthcare provider.

Yet, how reliable can that “help” really be to the juries determination of the “truth”,  if such large amounts of money must be paid for what then becomes only clearly, foreseeable competing testimony on the same medical facts?

Originally, our Court Rules allowed for opposing experts only by “appointment” of an expert by the Court “for the Court”.  Rule 1.360,  Florida Rules of Civil Procedure, now entitled, Examination of Persons, originally allowed the availability of a court-appointed witness ( presumptively, a truly independent witness sought by the court) to test any witness for the objectivity of their testimony.

In the years that followed, the court abdicated this quest for true objectivity by deferring obtaining opposing viewpoints solely to the defense. Thus, some observe that  the need for advocacy has apparently overcome the need for truthfulness?  Rule 1.360,  as amended over the years, is now almost exclusively used for employment by the defense of a “professional” medical witness solely for tactical use in opposition to a “treating” medical witness of a claimant.

And the Defense bar and insurance industry has used this Rule, well.  I suggest, too well.  And, particularly in the field of medicine.

Presently, in every local community, certain medical practitioners (and even more frequently retired physicians) are reporting literally up to millions of dollars, per year, of their employment income, is being received from insurance carriers, not for medical treatment, but solely for the tactical purpose of being available for ultimate (and predictable) trial testimony, if called upon by those who pay their fees.

Worse, if the opinion of any of these witnesses happens not to be helpful to its intended trial purpose, it is all to common for many attorneys to simply “shop” for another until the opinion sought is found!

This  increasing use of professional medical witnesses, for different uses,  but by both sides, I refer to as the “usual suspects” of personal injury litigation.   (Others use more unkind terms.)

Taking a phrase from the popular 1940’s movie “Casablanca”, where the Police Inspector asks his minions to ignore the obvious perpetrator and rather ” round-up the usual suspects” (because the truth was not convenient at the time), I use this term interchangeably, plaintiff or defense, for the huge cottage industry of high dollars that has shamefully arisen in the personal injury field:  The Professional  Medical Expert Witness.

This shameful medical expert industry undoubtedly got its start in basic personal injury litigation with the Defense.

Good, local, treating physicians, for example, “had” to be tactically countered for trial purposes in personal injury matters (if desired by the client) if trial became inevitable, despite the likely truthfulness of the local treating physician.  Accordingly, the defense quickly obtained and developed a stable of reliable, so-called “conservative” non-treating physicians who reliably would give “counter-testimony” at trial (with or without ever actually seeing the patient)  that favored only the defense.

Naturally, this led to the Plaintiffs Bar seeking and developing an apparently equally “reliable” list of “usual suspects” for anticipating and countering the “usual suspects” of the Defense.   Sometimes, they even actually treat the patient in order to testify.

Further, injured parties, particularly those without insurance, needed care.  And, claimant’s attorneys needed actual bills and actual treatment to demonstrate an actual injury.  Some physicians, then, sought to fill the void by catering to accident victims and agreeing to the needs of the litigation process.

This in turn, along with certain realities of insurance coverages (i.e., Florida PIP) led to the latest obstacle:  “the Process Line”.   Many insurers believe there is a growing cottage industry of a set group of healthcare providers, some in concert with attorneys or who with LOP’s, will take any claimant and “apparently” end up with a predictable outcome of a regimen of treatment, opinions of the need for future care, and most importantly, some really large bills (none paid by any insurance, even if available).

And, just as the Defense bar and insurance industry responded by dramatically increasing their attacks on LOP’s, so has the Plaintiff bar led the charge in attacking such proliferation of  and the incredible monies being paid to such clearly  “professional medical witnesses” for the Defense.

Thus also began the newest professional witness trend:  experts to opine on other experts!   (Generally, experts may not comment directly upon other experts opinions, but increasingly they are used to attack every basis of any opposing opinion.  i. e., their billing, their billing coding, their interpretation of tests relied upon, their choice of treatment, and on and on and on.)

This full historical circle of the ” Professional” medical witness also explains the clear mediation/settlement obstacle :  1) The more one side hires for trial, the more the other has to hire.  And, 2) The less total money that is then available to pay ANY claim BEFORE trial. And, worse of all, 3) Neither side will accept the testimony of such a witness so obviously hired solely for their known and predictable testimony.

It is time for everyone in the personal injury practice of law to wake up.  Both sides of the Bar have badly  abused the medical expert witness process and thus drifted away from first evaluating the claim   Instead, now, each side seems to be first evaluating only their trial necessities that each claim may require.

And the cost of reversing the traditional priorities has predictably become another major obstacle to settlement.  Such witnesses are blurring evaluations and preventing settlement!  They are becoming a self-fulfilling prophecy.

It could change if both sides would stop and re-think their self-destructive spiral.

The Plaintiff’s bar needs to become increasingly careful about introducing any client  to any medical treatment or medical provider unless clearly necessary, much less their “usual suspects”.    If you question any medical care or any witnesses’ credibility, so will your opposition.

The Defense bar (and the insurance industry) needs to stop relying upon their “usual suspects” for their claims evaluations!   You likely knew what you paid for before you received the opinion!

Or worse, beginning to “believe” their own paid witnesses for testimony they purchased!

Instead, why not send those claimants to someone who may actually be willing and available to treat the claimant.  (Or, at least be able to do so, if needed?)

Such witnesses are universally known to be employed solely for their predicted opinions and predictable testimony, not for any independent evaluation.  Accordingly, If they are paid because you know the answer they will give before they give it, how can you then rely upon them for any objective evaluation?

It is presently also clear that too many attorneys on both sides and many insurance professionals simply cannot see the inherent error of discounting the “usual suspects” of the opposition while accepting, in full, their own “usual suspects”.

One of the purposes of preparing for trial is to avoid trial.  However,  if your opposition will not accept the credibility of your “Professional Witness”, all of the monies expended upon them, for settlement purposes, is also a waste.  Worse, it may cause more monies to be expended upon them in a needless trial.

Thus at mediation, at best, the experts for both sides are deemed unreliable for objective evaluation and at worst,  the monies expended for these “usual suspects” block payments of similar monies that could have resolved the claim!

Have we not come full circle?  Aren’t  both sides spending simply too much time and money on trial experts unnecessary to claims resolution and not enough time and money on claim evaluation for resolution?

Wouldn’t it make more sense to truly and fairly evaluate every claim and attempting resolution before resorting to your “usual suspects” and thus dooming yourself to a costly trial?

Just a thought.  Might save everyone and the system a lot of money!  In the personal injury field, professional  medical expert witnesses are often just  another obstacle to resolution.

Dan, from Ocala, Florida.

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