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Too Close for Comfort? - Lawyers & Their Experts

Victor Lewin - Saturday, January 31, 2015

Medical Malpractice cases are expert driven. The complex scientific nature of the matters at issue means that judges and lawyers will turn to experts to assist in making determinations on issues like breaches of standard of care and causation.

This means that lawyers for patients and lawyers for doctors and nurses will routinely work with experts to get relevant opinion evidence before the Court at trial. This evidence comes in the form of expert reports, wherein the expert writes his or her opinion.

Earlier this year the Ontario Courts issued a seminal decision wherein it was found that the practice of lawyers reviewing expert reports and providing comments on those reports before they are finalized to be improper.

The patient in Moore v. Getahun suffered a high impact fracture to his right wrist following a biking accident. He was taken to the emergency department at a nearby hospital. His doctor applied a full circumferential cast after a partially successful closed reduction procedure.

On the following day, the patient went to the emergency department at another hospital, complaining of increased pain, swelling, and that his cast was too tight. He was seen by an emergency room physician. He was diagnosed with compartment syndrome and an orthopedic surgeon performed emergency surgery for this emergency condition.

The patient had lasting permanent injuries to his right arm as a result of compartment syndrome and its aftermath. He commenced a medical malpractice lawsuit against the doctor who initially applied his cast. A trial was held concerning the issue of the doctor's liability in applying a full circumferential cast to the plaintiff's injury.

After hearing all of the expert evidence, the Court found that the doctor did not meet the standard of care for a reasonably prudent general orthopedic surgeon in applying a full circumferential cast in light of the facts of this case. To meet standard of care, the doctor should have applied either a splint or a bivalved cast cut to skin.

Before discharging the plaintiff, the doctor failed to adequately educate or warn the plaintiff of the risk of developing compartment syndrome. The doctor also treated this injury as routine. The Court found that the doctor did not meet the standard of care of an orthopedic surgeon in a community hospital in the year in question by failing to adequately educate the plaintiff about risks and symptoms of compartment syndrome.

Of greater significance to future cases are the Court's comments concerning the lawyer for the physician and his interactions with the expert. It became known at trial that one of the defence experts had submitted a draft of his report to the law firm representing the doctor "for comments". A ninety minute telephone conversation ensued between the lawyer and the expert, during which the lawyer suggested changes to the draft report. The expert implemented the "corrections" in the final version of the report, which was then provided to the patient.

The Court spoke harshly about this practice, saying:

I conclude that counsel's prior practice of reviewing draft reports should stop. Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable.

If after submitting the final expert report, counsel believes that there is need for clarification or amplification, any input whatsoever from counsel should be in writing and should be disclosed to opposing counsel.

...[t]here should be full disclosure in writing of any changes to an expert's final report as a result of counsel's corrections, suggestions, or clarifications, to ensure transparency in the process and to ensure that the expert witness is neutral.

This decision is important on several levels, but most significantly it could influence a change in the currently widespread practice of lawyers' review of experts' draft reports and suggesting revisions. This is a welcome decision and if widely followed would likely be of greater benefit to patients in medical malpractice decisions than it would serve doctors (and their stable of willing experts).

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