Why is the Bar for Medical Legal Competence so Low?

Why is the Bar for Medical Legal Competence so Low?

I began my practice as an Orthopedic Surgeon in 1972 and was board certified in 1973. In 1975, friends of mine who were personal injury insurance defense attorneys asked me to help them evaluate the medical aspects of their cases. I began to review personal injury cases, write reports and testify as an expert witness. It was a difficult learning curve. I had to teach myself to be a successful expert consultant and witness by stepping out of my training and comfort zone and by reaching out to insurance and attorney clients who retained my time and expertise for advice. There was simply no formal education and training for doctors at that time to learn medical legal skills or expertise in medical school or postgraduate, specialty training. That situation has not changed significantly in the last 42 years.
I gradually diversified my practice to include medical legal consulting and found that it was not only a welcome alternative source of revenue, but also a very stimulating and challenging intellectual use of my time. Over the next 10 years as I became more proficient and well regarded by my clients, I was overwhelmed with requests for my time and consulting expertise to the point where the demand became unmanageable. I was not able to take all the orthopedic consulting engagements that were offered. I was also being asked frequently for referrals to well trained and credentialed physicians in a number of other specialties. Once I began to send work to other well trained and credentialed orthopedic surgeons and various well qualified specialists in other fields of medicine, I learned that my clients were not happy with those referrals because “although they are certainly well trained physicians and specialists, they are not good medical legal consultants or trial expert witnesses”. As a result, I recognized that the doctors to whom I wanted to refer my clients needed medical legal education and training in order to function as effective and competent experts.
In the course of recruiting and training physicians to be skilled experts I learned another fact. I could not, and the prospective clients who wanted to use them could not, work effectively with the doctors’ clinical and office staff personnel in scheduling time for evaluations, consulting or testimony. In response to this new insight, I began to train and augment my office staff to provide full administrative support to the doctors who wanted to become active consultants and experts.
In 1990 I founded Benchmark Medical Consultants to educate, train and provide full front and back office administrative support to physicians who wanted to become medical legal consultants and experts. By 2009 BMC had grown to representing over 1200 trained experts providing consulting and expert services to over 5000 insurance and attorney clients. In 2005, BMC applied for and after rigorous qualification and review, eventually garnered an ACCME certificate to provide Category 1 PRA CME credits to educate physicians in “best practices” of the medical legal process and performance skill sets.
Benchmark Medical Consultants was sold to Examworks, Inc., the largest US, Canadian and UK provider of medical legal services to the government, insurance and legal industries in August of 2009. Prior to the sale I created a “sister corporation”, Benchmark Continuing Medical Education and Consulting, Inc. to retain the ACCME accreditation and CME certificate. In 2010, I began to develop a business plan and educational materials to reach a much larger audience of doctors who wanted to acquire the medical legal skills that would allow them to become successful experts as well as those physicians who were already doing the work and wanted to improve their competence.
Our first meeting was held in Newport Beach, CA on Nov 11, 2011. We had a second meeting in Sacramento, CA on Feb 25th, 2012 and a third meeting in Phoenix, AZ on March 3rd, 2012. In those three meetings it was apparent that attending doctors who were more or less experienced in medical legal work were not any better at performing the work before they took our course than inexperienced doctors, who had never done the work were after they attended the meeting and took our course. In short, experience had little effect on competence for the majority of doctors and it took only a one day quality educational activity to bring inexperienced doctors to that level of ability or better.
Why are so many doctors who are doing this work so poorly trained or capable A major reason is that everyone in the equation, doctor, lawyer and insurance professional or government agency representatives do not understand the others’ needs and do not have knowledge of the different disciplines they work with to find just solutions to injury and disability problems. During my career, I’ve found attorneys to be eager to learn more medicine and insurance people to want to know how better to read medical records and understand what doctors do when they examine patients and what influences them in diagnosis and treatment. Unfortunately, no one is teaching all the stakeholders the knowledge they need to truly interact successfully and synergistically.
By far the most important problem is that doctors doing this work have very little opportunity to access quality education and training. The truth is that doctors are not trained to understand or function well in a legal or claims atmosphere and lawyers and insurance professionals are not cognizant of how and why doctors do what they do or how they interpret information from patients or reach their conclusions. The need for medical interpretation and explanation of injury and disability is so great that the people involved are willing to put up with poor performance. As a result, everyone involved in the medical legal process is at a distinct disadvantage in getting what they want from each other. Each professional needs their counterpart to be competent in their skills and performance and few are even aware of what quality and skill entails in each other. The bar for performance is low because poor performance is the norm and people don’t know what quality should look like. This is an eminently remedial situation whose solution would greatly benefit all involved and society in general.
The obvious answer to this dilemma of poor performance and lack of recognition of quality is to have all the participants in the process, claimants, defense attorney, plaintiff attorney, insurance company and courts or adjudicating agencies acquire knowledge of each other and the needs that each professional has. Most important among these is the doctor who evaluates injured and ill people and must answer complicated questions that no one else can.

An unbiased, accredited and recognized medical, legal and insurance educational process is required to achieve this interdisciplinary goal. Standards of best practices, knowledge and competence for medical experts must be established by interdisciplinary collaboration that are recognized and endorsed by the medical, insurance and legal professions. A testing system must be developed to certify medical experts’ competency such as specialty board examinations in various medical and surgical specialties. A national association of “board certified” medical legal experts should be established.
Doctors must increase their ability to evaluate claimants, write useful and skilled reports that laymen can understand, interpret and answer difficult, intricate questions, consult and testify effectively. It is imperative that doctors change their perspective from the limited clinical focus of “what is it and what should be done about it” to what is the big picture, ie is there truly a problem, injury, illness or condition, what is the scientific explanation of what caused it, does it need intervention and if so what is the usual and customary diagnosis and treatment as well as will it resolve and or what are the long term care and level of activity or work capacity issues that need to be addressed? To do this work effectively, the doctor with medical legal training is an objective investigator who must fully delve into all the aareas of concern, perform a historical interview, do a complete physical examination, review existing medical records and diagnostic test results, and be able to relay that information to a lay audience with a well-structured, logical report that demonstrates his or her path of reasoning and how they reached their conclusions. To accomplish this, the doctor must be able to communicate fact based opinions clearly and defend them under scrutiny and in an adversarial environment. The successful medical legal expert must know how to advocate for their opinion without bias or personal involvement in delivering or explaining it. There is no place for arrogance, judgments or condescending behavior. Few doctors meet these requirements or standards of performance.
In conclusion, the bar for medical legal competency is low because the professionals engaged in the field of injury litigation or adjudication are not well versed in each other’s discipline or training or the needs they have in their separate professions. Standards of competence and best practices in the individual specialties are not well known or understood. Stakeholders in the process are not familiar with anything like a “standard of care” or performance or what constitutes skilled and ethical behavior in the eyes of their collaborators.
If a quality education and training process were created that exposed doctors to all the nuances and requirements they must meet in the medical legal field, they would be vastly more capable of doing an exemplary job in evaluating claimants, writing skilled reports and testifying in deposition and trial effectively. High quality, interdisciplinary education and training would “raise the bar” fort competence and skill. The results of training would improve outcomes for all concerned, claimants in receiving fair compensation, defense attorneys in settling or litigating cases, plaintiff attorneys in avoiding cases without merit and insurance companies in paying just awards and eliminating unnecessary litigation. Furthermore, courts would become less crowded, the cost to society of litigation would decrease and claimants would spend less time being “sick” to improve their chances of financial recovery and return to productivity sooner. In essence, “a rising tide lifts all boats”!