What is medico-legal medicine and what are medico-legal medical reports
Medico-legal Medicine is the interface between medicine and the law and usually requires a medical examination and the provision of a report.
Administrators/Legal professionals require medical information to make some decisions. Medico-legal reports may be used for resolution of claims such as in civil injury, medical negligence, or as part of a worker’s compensation or in the transport accident scheme.
Medico-Legal Medicine: Information exchange via medico-legal medical reports
Medico legal work requires a medical practitioner to provide assessment and advice, usually to enable the resolution of the administrative or legal action.
This may occur with the provision of the treating doctor(s) information via practitioner/specialist reports or requests for records. Interpretation of this information can be an issue.
Legal practitioners, although experienced in medico legal issues, are not trained to interpret the nuances in medical records and significance of clinical and investigative findings.
There are medical specialists who can provide expert advice on a disease or condition in the context of the legal proceedings. This is expert medical evidence.
There are also medical experts who specialise in preparing and undertaking medico legal examinations. This field of medicine differs from a specific medical expert who may be called upon because of their particular expertise in a field of medicine, to give an opinion regarding a particular disease or disease process.
Common issues in Medico-Legal examinations
‘Commissioning bias’ is when each party contracts their own expert witnesses who present evidence, either in a report or directly to the court, that favours the party that contracted them. These experts are often referred to as “hired guns”.
An example of this is the well demarcated opinions that exist amongst medical experts in relation to the issue of the work relatedness of carpal tunnel syndrome.
It is recognised that third-party examinations or medico legal examinations are also disproportionately represented in complaints.
Common complaints include that the examiner was rude or dismissive, or there was a lack of respect for privacy, or even worse that there was an exacerbation of the injury as a result of the medical examination.
The dynamics of a third-party examination contribute to these difficulties because it is not a therapeutic relationship.
When a patient attends a treating doctor there is an element of trust. The consultation is not adversarial and the doctor’s first duty is to the patient.
In a third-party examination the examining doctor’s first duty is to the third party who has commissioned the report. The consultation is not confidential and often the patient does not know what to expect from the consultation.
The introduction of an Expert Witness Code of Conduct into the courts, has assisted courts to deal more openly with the problem, and to ensure expert witnesses understand their obligations to the court.
The introduction of conferences between experts, who produce a joint report for the court on where they agree and disagree, has also helped eliminate some aspects of bias.
Medical Panels
In Victoria the Government has established the Medical Panels system for answering ‘medical questions’ in relation to claims under the Accident Compensation Act 1985 (Vic) and disputes determining the threshold for access to the Wrongs Act 1958 (Vic) for claims for non-economic loss.
The function of a Medical Panel as defined in section 67(1) of the Accident Compensation Act:
“is to give its opinion on any medical question in respect to injuries arising out of, or in the course of, or due to the nature of employment…..”
Medical Panels – How do they work?
The process for convening a Medical Panel is straight forward and requires:
1. The Governor in Council approves a list of medical practitioners to be eligible to be appointed to a Medical Panel. The list consists of medical practitioners of different specialties with appropriate experience and peer credibility.
2. From this list, the Minister appoints a Convenor and Deputy Convenor.
3. The Convenor and Deputy Convenor appoint the doctors to a Panel for the medical questions that are referred to Medical Panels. The office of the Convenor is supported by both legal practitioners and administrative staff.
4. A Presiding Member of each Panel is appointed, who then has the responsibility for preparing an Opinion which answers the questions, and Reasons which explain the Panel’s reasoning behind its opinion
5. A medical examination is undertaken, generally conducted as joint medical examinations with the different specialties represented, at dedicated premises, and with one member of the Panel appointed as the presiding member.
6. A Medical Panel only exists for the life of the referral, until the Opinion is released.
Under the Accident Compensation Act, referrals to the Medical Panel can come from
- Authorised Agents and Self-insurers
- Conciliation Service
- County and Magistrate Courts
- Worksafe
Under the Wrongs Act, the Respondent can make a referral in relation to the Certificate of Assessment for purposes of considering whether the threshold requirement has been met.
Medical Panels as a Tribunal
1. The Supreme Court of Appeal in Victoria has ruled that a Medical Panel has the status of a “Tribunal” for the purposes of Administrative Law Act, 1978 – see Masters v McCubbery.
Final and binding decision
Amendments made to the Accident Compensation Act in 1997 determined that any finding of a Medical Panel, is final and binding on all parties, including the Courts. However recently, this has been debated.
As a result the only method of disputing a Medical Panel’s opinion is on the basis of an error in process, or natural justice under administrative law. That is, there is no appeal available on the merit of the case but appeal is limited to procedural aspects. If a Medical Panel opinion is quashed by the Supreme Court, it is referred back to Medical Panels and usually to a differently constituted Panel, for a further opinion.
There are approximately 4,000 Medical Panels appointed per year in Victoria, and only a small proportion of these cases are referred for review by the Supreme Court. The general consensus from the stakeholders is that this method of alternative dispute resolution of medical disputes , is effective, and certainly anecdotally, most claimants will frequently say that the medical examination that they have undertaken is generally one of the best examinations that they have undergone, irrespective of the outcome.
Impairment
- Impairment is the loss of use, or derangement of any body part, system, or function
- Disability is the effect of the impairment on an individual
- The same impairment in two different individuals can have significantly different disability – eg: loss of finger for concert pianist and labourer
- For assessment purposes, impairment must be permanent
Impairment Assessment
Despite the need to discriminate between disability and impairment, it is now a common approach in Australia to use a measure of impairment for purposes of compensation.
The American Medical Association’s Guides to the Evaluation of Permanent Impairment is utilised in various states in its various editions. In Victoria we use the fourth edition AMA Guides, whereas the fifth edition is used in other States.
The AMA Guides are currently published in the sixth edition, and although there are subsequent editions, they are not necessarily more advanced or better to use.
The Guides do have a degree of reliability and validity and when assessments are undertaken by appropriately trained medical practitioners. In Victoria all medical practitioners undertaking assessments using the Guides, are required to have completed a Ministerially approved course in the various modules.
Abnormal illness behaviour and Impairment Assessments:
Another feature of the third-party examination that is often discussed, is the concept of abnormal illness behaviour.
Other terms which have been used to describe this behaviour include ‘Inappropriate illness behaviour’ or ‘Functional Overlay’.
It is important to recognise that this behaviour is different behaviour from true malingering, which is a deliberate and conscious attempt to feign illness or disability for secondary gain, and also from psychiatric conditions such as hysterical conversion reactions and somatoform disorders.
An understanding and recognition of the impact of socio cultural differences, is important for the adequate assessment of impairment, when considering the presence or otherwise of abnormal illness behaviour
Abnormal illness behaviour may make the technical task of assessing impairment difficult, especially when range of motion is required for the assessment. However a skilled examiner can usually overcome some of the difficulties.
In conclusion although there has been considerable change and improvement in the interchange of information between law and medicine, there is a need for continuing dialogue and refinement of process.
There is also a responsibility of both professions to ensure that our lawmakers develop legislation and regulations that are fair and equitable.
[Source: Dr John Malios; Melbourne. Deputy Convenor of Medical Panels, Victoria]
1 Masters v McCubbery [1996] 1 VR 635
I just thought it’s important I share the following WARNING with you.
Whilst overall I have been impressed (positively) with the Medical Panel in Victoria ( I have been 3 times), yesterday I received the 3d Panel’s “opinion” basically to let me know that the Panel cannot form an opinion about my permanent impairment rating because of “injury unstable”, for the 3d time, and after 7 years since the accident. This time it’s about that infection in the shoulder, which I understand.
However, the Medical Panel attached its “report” and there were quite a few shocking discrepancies in this said report. One such an example is that the Panel wrote that I only had arthroscopy holes (scars) on the shoulder and that I had told them that the 6 cm long ugly scar at the front of my shoulder was because of an operation in 1991 (WHAT????). They obviously did not bother to read the relevant material provided because the material clearly states in detail that I have had 7 operation, and that during the last one for example,they excised the previous 2 cm scar at the front of the shoulder and CUT it open further up to 6 or 7 cm length (as you can see on the mysterious picture post). This operation, as the panel states itself involved transplanting hamstrings to my shoulder, so any orthopedic surgeon should know better than trying to transplant tendons via a little hole with a scope, duh! A scar (all scars) count towards impairment, the longer and uglier they are the more % you get. For example for this ugly 6-7 cm scar I could expect to get 1-2% impairment -EVERY BIT counts when you need to reach 30% total body impairment so that you can sue for common law damages (pain and suffering / economic loss). I am hovering around 25% in the insurance doctor’s “impairment assessment” so I really want my 30% so that’s why we appealed the assessment to the Panel.
MAKE SURE YOU READ CAREFULLY THROUGH THE MEDICAL PANEL’S REPORT AND POINT OUT ANY OBVIOUS DISCREPANCIES AND ERRORS TO YOUR LAWYER – GIVE EVIDENCE (SURGICAL REPORTS, PICTURES,WHATEVER) AND HAVE IT RECTIFIED ASAP.
I thought the bar was 10% ?
Nope, in Victoria you need a whopping 30% to be eligible for common law damages claims (pain & suffering / economic loss) – this is where you here those stories about injured people getting $500,000 or more.
The 10% threshold total body impairment applies (in Vic) to your eligibility for a lumpsum. Those lumpsums are pathetic. You need 5% only for an arm,leg or back injury but all the rest you need a minimum of 10%,that is why it is so hard to get to 5% in the first place, they use old, outdated AMA 4th edition medical guidelines (banned in the US for being outrageously unfair!) Most seriously injured people will get around 5 to 7%, I kid you not. For example you may injure your spine (back) terribly and only get 7%, but because it’s your back you are entitled to a lumpsum which will be around 8-10,000 if that and THAT’s IT FOR THE REST OF THEIR LIVES!!!! That is what’s so enraging me, it’s very unfair. It’s extremely difficult to get 30%, cos for that you really need to be crawling and totally f*cked. As I said I am “lucky” as the insurer doctor already gave me 25% and that was unfair, very unfair cos he deliberately omitted several serious injuries etc and this assessment by the way was before my last surgery where they transplanted the tendons from my leg and that went all wrong… Now I am going for surgery for that infection…. So I am likely to be “very lucky” (very f*cked ) indeed and get just over 30% and be entitled to sue my employer for negligence and get my deserved compensation. Still then… even if you get let’s say $300,000 (- legal fees = 20% off) this leaves you with $30,000 per year for 10 years, which is f*ck all, in-spite of the many people who think that you have won the lottery. This is for the rest of your live and for a person who can never work again (when you get that money they deduct the lumpsum from it as well – ckeecky!) and if economic loss is included you no longer get weekly payments from workcover ever again. Note that I also do not get superannuation on workcover – so whatever money I (may) get in compo is also partly super / needs to be treated like super….
Check out this post for more info
You need to live on the interest, not the principal.
300k at 7% minus 4% inflation = 3% real rate of return (this is the number the TAC use for THEIR investments, but doing calculations, they expect victims to get 6% real rate of return — outrageous, the entire financial services industry average is only about 5.4% over the long term)
300k = about 9k/year at 3%
Not bad compensation for someone who was probably earning 80k pre-injury. You can barely even live on the street for that in melbourne thesedays.
Just abusive insanity.
Ben.
IF I ever get my compensation (remember…30% impairment, then PROVE negligence, then prove economic loss forever) then, yeah, of course I plan on using the $$$ very wisely. I have had pretty wild fantasies about it to be honest (keeps me sane when I am so broke can’t buy cigarettes). Investment property/ies and rent out; shares stock market; and my ultimate dream is to buy a real nice big (2nd hand) “winnabago” or whatever these caravans on trucks are called and piss off… cruising around Australia, stay where it’s nice, ultimate freedom and AWAY from Xchanging, yohoo, bye, bye! The problem, I need a driver!
Also, if you read the linked post about compo, you must/will see that the compensation amounts (payouts) are CAPPED – nice one, huh? As if you could f*cking put a dollar value on PAIN and SUFFERING??? The max amount is somewhere around $400,000 and for that you gotta be paralyzed from the neck down and young !
Lovely legislation indeed…
the limits on “damages” are worse — despite me trivially being able to demonstrate that my real, long term injuries leave me earning 25% of what I could otherwise would have (and a massive increase in time and pain to do even that much)… The limit is just over a mil all up. Now that might sound a lot, but not when you take a $100k job over 40 years, add interest, and you’re talking about $7mil vs $1mil …. and that’s being generous because they *never* pay the $1mil damages, it’s divided down, and discounted, and calculated at insane interest rates, and leaves you with more like half that. That’s something like a 15 fold lifetime loss of income.
And I’m supposed to be happy, and thankful, and not complain, or be angry, or nobody wants to be my friend. Just makes me angrier, and people wonder why I lash out at them for refusing to partake in political action to get this legilsation fixed, and the system changed to a non-profit one with a single clear task, and underwritten by the state government.
Ben.
If any consolation, for a workcover victim to be allowed to sue for loss of earnings / economic loss they have to prove a whopping 40% loss of earning capacity, and suffer from a “serious injury”. How nauseating. Because, as you know, the insurance company will do anything possible to say that you can still ‘earn 40%’ of your pre-injury wages by let’s say licking stamps (whilst you are a quadriplegic)….
It is infuriating, I agree, and I too feel powerless and at times livid… The problem is how can we (you and me) fix this shit ALONE? It is enraging that not more victims are able or willing to stand up for their rights, and from my understanding from the feedback i am getting, is that victims are too scared of insurance reprisals. That’s how bad things have really become. People are petrified that that little bit they are still getting in ‘benefits’ will be taken away from them should they make themselves publicly knows (i.e. by signing a petition).
I frankly believe that complaining (as in writing dozens of complaint letters to the insurer, worksafe, TAC, whatever) poses a potential greater risk for ‘reprisals’ than to sign a harmless (really) petition to improve your rights and set a corrupt system straight….
Take a deep breath Ben. Try to understand that all are not born with a sense of profound natural justice…. You can’t force people to act, you can only show them (with evidence, or like I try to do via this site) what is actually really going on, in the hope to eventually get the necessary people “on board” to gain “leverage” to make a real change…..
Does this make sense?
Private comment.