The Practice

Pain Management:

Wesley Pain and Spine Centre

Wesley Hospital, Chasely Street, Auchenflower Qld 4066

Appointments: 07 3232 6190

Medico Legal Appointments:

Leximed

Level 2, Suite 30, Silverton, 101 Wickham Terrace, Brisbane Qld 4000

Telephone: 07 3831 5681

Fax: 07 3831 5682

 

Dr Leigh Atkinson AO

The Surgical Expert Witness

Medico-Legal Reports

Click here to download the complete paper with the slides (499Kb pdf file).

The transition to retirement can be quite challenging for the active surgeon. However with the experience of many years of surgery, the surgeon has vast experience which can be applied to the assessment of injuries and an impartial medico-legal report. Often our partners urge us into retirement and there might be an expectation of some glowing Shangri La or another visit to Brigadoon. However, the same partners can become quickly irritated by questions such as, "Where are you going for lunch?" and "What time will you be home"?. The medico-legal option presents us with a soft landing and one that can be of relevance.


On careful reflection, you may find that there are some interesting advantages for the surgeon who continues on with the medico-legal option. Some of these might include a continuous income which has some attractions with current superannuation plans. There is a generous reduction in medical indemnity. The "on call" requirements disappear, and one's professional life becomes much more controlled. Again, the College requirements for Professional Development activities become easier and, lastly, the costs of running an office are cheaper.


However, there are personal requirements for those who are interested in becoming a Surgical Expert Witness and in preparing medico-legal reports.

Firstly, each surgeon must be registered. The surgeon needs to be in active practice or, ideally, retired less than three years. Recertification requirements and Continuing Professional Development activities need to be maintained. An office with a secretary and typist is certainly necessary. It is to be noted that the surgeon reporting must focus on areas of his or her specialty and not wander into other fields. The surgeon needs to be impartial. Reports need to be speedily returned to the requesting body.


In Australia today, there is a large growth in medico-legal companies that offer the surgeon sessional work. Some are international, others national, and most probably operate only within the state. These commercial groups gather in the referrals, arrange the appointments, provide an office, and provide typing and editing skills. This can be a comfortable and easy way to work. At times they can offer travel to other cities and other states in accessing and preparing these reports. Some of the commercial medico-legal groups that are available now include MCLOA, Medilaw, Leximed, Medicolegal Australia and Expert Experts. The reward is significantly reduced from these reports but it allows the surgeon to work without having to maintain an office.


The surgeon who is interested in preparing medico-legal reports needs, first, to become conversant with the Guides to the Evaluation of Permanent Impairment prepared by the American Medical Association. The principles in the early chapters of these Guides are most important. The specialist surgeon is not expected to know each of the special chapters, but certainly one has to be very conversant with the chapters relevant to the surgeon's speciality.

To confuse the issue, different states use different editions of the Guides. WorkCover Queensland and Q-Comp use the 4th Edition with an additional Table of Injuries. But in the Courts in Queensland, the 5th Edition applies, and there are subtle and significant differences. For example, pain is not recognised in the 4th Edition, but it is in the 5th Edition. These Guides can be difficult to come by, as some are out of print. Still, at present, one would need to have, in a library, access to the 4th and 5th Editions. Recently, the 6th Edition has been published, and it is hoped that this will be uniformly accepted by all states in Australia.


For the present, the 4th Edition, a brown-coloured book, applies to WorkCover cases and to Q-Comp assessments. It also applies in Victoria.


The 5th Edition, a green-coloured book, applies to the District and Supreme Court in Queensland.


The 6th Edition, which is now available, has significant changes, and it is probably worthwhile obtaining a copy if you are interested in moving to medico-legal reports.


The surgeon who is moving more and more into a medico-legal practice, needs to keep in the front line of continuing education and medico-legal updates. Additional medico-legal education becomes most important. The College offers regular seminars around the country on medical report writing and on training the surgical expert witness. In addition, the Medico-Legal Section of the Annual Scientific Meeting of the College is possibly the most popular section of the meeting. The programs offer some very useful medico-legal education. Membership in the Queensland Medico-Legal Society is another option to strengthen one's education and awareness in this area. Comcare runs courses, and those surgeons working for Q-Comp will find there are regular training courses annually for Tribunal members.


However, probably the most useful activity is in attending of the annual courses provided by the American Board of Certified Independent Medical Examiners. At least once a year these courses are run in Australia. They usually run over three days, with an examination at the conclusion. The courses are tiring and challenging, but there is much to be gained from the course and the qualification is useful.


Usually the courses are run by Mohammad Ranavaya, an impressive teacher and one of the editors of the Guides to the Evaluation of Permanent Impairment. In Queensland, he is often sponsored by Q-Comp to provide additional courses and this can be most helpful, not only for preparing for Tribunals but also for additional court work.


In 2004, new uniform Civil Procedures Rules were introduced. These particularly applied to the Rule 428 and the Rule 429. The Courts became much more focussed on the Codes of Conduct with respect to expert evidence. Most times the referring legal group provides a copy of the requirements for these Codes of Conduct, which do vary from state to state.


The medico-legal expert, particularly if one is practising independently, requires access to referrals. This is probably becoming quite competitive. The growing influence of the commercial medico-legal groups may well dominate the presentation of medico-legal reports in the future. Reports might be expected from medical insurance companies, third party compulsory insurers, WorkCover and Comcare and, lastly, from areas of Victims of Crime.


In conclusion, the long experience of surgical practice can be quite helpful in that transition period to retirement. Medico-legal report writing and work as a surgical expert witness can be rewarding. It can be a helpful bridge into retirement.

But it is important to be very conversant with the AMA Guides to the Evaluation of Permanent Impairment. One needs to be well informed on the Expert Codes of Conduct resulting from changes to Civil Procedures in 2003 and 2004. The surgeon must keep up the standards for Recertification under the Continuing Professional Development of the College and, lastly, one must be honest and impartial.

 

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