making your case
"If it doesn't fit, you must acquit."
O.J. Simpson Trial Attorney
By Karen M. Meade
In addition to forever etching this cleverly rhymed plea into TV viewers' minds, the frenzied media coverage of the O.J. Simpson trial also spotlighted the role of medical expert testimony. From scientists who presented DNA evidence to physicians who testified that Simpson's football injuries rendered him incapable of committing two brutal murders, prestigiously credentialed professionals took the witness stand.
But high-profile murder cases like Simpson's aren't the only place for medical expert testimony. Workers' compensation litigators rely heavily on medical experts to prove or disprove a worker's claim of permanent disability. Most often, these experts present the results of a functional capacity evaluation (FCE) or other measure of ability.
Medical expert testimony can have serious consequences for the worker and his employer, says Deborah Lechner, MS, PT, associate professor in the physical therapy division at the University of Alabama at Birmingham, and president of ErgoScience Inc., also in Birmingham.
"The results of an FCE are used to make some very important decisions that can profoundly affect a person's livelihood," she explains. "We're talking about [court settlements] that can range from hundreds of thousands to millions of dollars. So there's often a lot at stake for the individual for or against whom you're testifying."
Given this, industrial rehab professionals who treat patients with work-related injuries should always be prepared to testify. The best way to do so is to conduct each patient evaluation as if you will have to defend your findings in court, Lechner says. "You should not be giving superior treatment or be more conscientious just because you think you'll be going to court with a patient," she maintains. "The same high quality standards should be applied to all patients."
Treating all patients equally is especially important because, in most cases, an attorney doesn't ask therapists to testify in court until a year or more after they've evaluated and treated a patient, says Jim Rennell, PT. He is a former private practice owner who works in Colorado Springs, Colo., as an independent functional capacity testing consultant.
While you can't always predict which cases will end up in court, there are certain red flags to look for, Rennell says. For instance, any patient whose injury has kept him out of work for more than a year is likely to seek a court settlement, as is one who has retained a lawyer by the time he comes in for treatment. Rennell recommends, therefore, that patient intake forms inquire whether the patient has an attorney and how long the patient has been unable to work.
Once in court, the medical expert witness--usually a therapist or physician who specializes in industrial rehab--must render an expert opinion on the patient's level of impairment that has resulted from the work injury. Doing so most often involves preparing a written report, says Paul M. DiLorenzo, MD, medical director of the rehabilitation department at Riverview Medical Center, Red Bank, N.J. He is a physiatrist who also runs a private practice in Eatontown, N.J., that specializes in medical expert testimony, among other sub-specialties. The written report Dr. DiLorenzo prepares from a medical record review and patient exam is submitted to the court as evidence.
Other forms of testimony include depositions--pre-trial, audiotaped or videotaped interviews courts use to help both parties come to an out-of-court settlement--and courtroom interviews, in which the witness answers an attorney's questions in front of the plaintiff, defendant and judge. (Unlike criminal or civil cases, workers' comp cases usually don't involve a jury.) Sometimes testimony may also include a videotaped or live demonstration of a patient's inability to perform work-related tasks, says Susan Isernhagen, PT, president of Isernhagen and Associates, an HFR Co., Duluth, Minn.
FCEs in the Courtroom
No matter what form the expert testimony takes, it should come from the results of a proven, objective FCE--not a therapist's subjective opinion. As such, therapists need to choose their FCE carefully, says Anne K. Tramposh, MS, PT, CDMS, president of Advantage Health Systems, Lenexa, Kan. "I would be very uncomfortable going into a deposition or trial setting if I were using a homemade FCE," she explains. "If you're going to end up in court, you need a tested and tried method."
Such an FCE should be standardized, and have a procedure manual and a scoring system, says Lechner.
You also need to know how to use the FCE properly, says Rennell. "You must have excellent knowledge of your [FCE] and be thoroughly educated in it so that your assessment cannot come into question," he explains.
Even so, you have to be prepared to defend your conclusions. Because learning how to do so isn't covered in standard coursework, therapists need to look to outside sources to help them prepare for court testimony. These sources include seminars from workers' comp attorneys and FCE companies, as well as colleagues who have previous courtroom experience. Sometimes participating in a mock trial can help too, says Tramposh.
But the best preparation remains a thorough FCE report review. Rennell recommends that therapists preparing for court review the patient's chart well enough so that they don't have to look back at it to answer questions about it.
Before testifying it also helps to speak or meet with the attorney who has asked you to testify, says Denise M. Miller, OTR, director of industrial therapy at KEY Method, Minneapolis. Such a meeting can offer insight into what parts of your report the other side may question and what data to prepare, Miller says.
Because the first part of court testimony focuses primarily on witness credibility, Miller also suggests updating your credentials and curriculum vitae before entering court. A CV should include education, experience in industrial rehab and how long you've been providing FCEs, she says.
You will also need to defend your credentials, Tramposh adds. "Typically the thing they will attack you on the most is your credibility," she warns. "[You've got to] be prepared to toot [your] own horn and go on the offensive so [you] can establish [yourself] up front as having a story to tell."
Taking the Stand
When telling this story, adhere to the following list of dos and don'ts, sources advise:
* Remain objective. Therapists who take sides lose credibility as a witness, says Lechner. "Our role as therapists is to provide a neutral, unbiased report of the patient's functional abilities. In theory, our information should be useful to both sides if they're trying to come to a fair and equitable resolution."
* Answer only what's asked. While you'll have to field questions from both sides, witnesses who offer additional information needlessly extend their testimony, says Rennell.
Offering additional information also brings your credibility into question, says Dr. DiLorenzo. "Never try to steer your answers or try to avoid giving testimony. If you do, it's obvious that you're not being honest. This is sometimes where people get themselves into trouble--when they give more information and open up whole new lines of questioning that they're not prepared for."
* Stay in your area of expertise. Answering new lines of questioning can be dangerous, since it may force you to testify outside of your area of expertise, Dr. DiLorenzo says.
It's also best not to answer questions that ask for subjective interpretation, such as those about patient motivation and sincerity of effort, says Lechner. "We're not trained to nor do we have the measurement tools to evaluate underlying motivation, but some physicians, lawyers or case managers pressure us to do so," she notes.
* Speak up and give verbal responses. Proper courtroom etiquette calls for verbal yes or no responses, not head nods or other gestures. Also, speaking up and being aware of body posture and gestures are important, since everyone in the courtroom, including the court stenographer who records the court proceedings, needs to clearly understand you, Miller says. She also recommends professional dress, even if your employer doesn't require it.
* Know your case. It helps to know the patient's report well enough to not have to continually refer to it when fielding questions on the stand, says Rennell. But he cautions against sounding as if you're simply reading from the report, which can bring your credibility into question.
To find the right balance between appearing unprepared (unqualified to testify) and too prepared (biased), go into court with a general idea of responses you're going to give and a thorough understanding of the FCE results and recommendations, but don't make your answers seem as if they're memorized, Miller recommends.
* Use layman's terms. When answering questions on the stand, use nonmedical terms, because the judge and others in the courtroom won't be familiar with medical jargon, says Dr. DiLorenzo. "Unless other people understand my report, what I'm saying is useless," he maintains. Dr. DiLorenzo often uses charts and visual aids, such as an anatomy chart, to help laypeople better understand how his report relates to the client's ability to return to work.
* Relate your testimony to the client's job. Present laypeople with job-specific examples. Conducting evaluations at the client's job site can help, says Isernhagen. Doing so lets her put job-specific information, such as how high a shelf is or exactly how many times a patient has to perform a repetitive task each day, into her court reports.
* Keep your cool. Remain calm and professional when responding to questions from attorneys, Tramposh warns. "Answer their questions, but don't lose your cool and get upset and angry when [they attack one of your answers]."
Most important, remember that, unlike therapy, court is an adversarial setting. "You're going to be in the midst of a battle regardless of who called you to testify," Isernhagen explains. "Your position as credible or not credible is going to be questioned by two opposing forces. ...[But] if you stick with your report and the facts, you should be fine."
Karen M. Meade is senior associate editor of ADVANCE.