– June 17, 2010
If you send it all, they will bill for reviewing it all
If you send it all, they will bill for reviewing it all
Lowering expert costs are simple if you just send only the information needed
I have been a medical expert for both the plaintiff and the defense for more than 40 years in various states. I am amazed at the volume of unnecessary medical records and other material sent to experts for review. Once I receive them I have to spend numerous hours, at considerable expense to lawyers and insurance carriers, wading through pages of irrelevant information and quite often duplicates of material.
How can this be avoided? How can this unnecessary expense be reduced? How can this process be streamlined and made more efficient? The following are some suggestions:
- The lawyer or insurance carrier is aware of the plaintiff’s complaints and should restrict material initially sent to the expert to the time frame of the alleged malpractice event. This may consist of anything from one page, when an incorrect dose or procedure was the cause of the malpractice suit, or a longer time frame if that is warranted, or to the particular admission in which the malpractice event took place.
- The lawyer should send the pertinent pages of the medical record on the event with necessary back-up material, e.g., pertinent laboratory, radiological or pathological reports, or pertinent focused nursing notes or flow sheets.
- All other material, e.g., medical records of previous unrelated admissions and duplicative or irrelevant information should be culled from the record and not sent to the expert. The appropriate culling of the record can be done by trained para-legal personnel at considerable less expense compared to this being done by the medical expert. This will expedite the process and be more cost-effective.
- The medical expert should then request focused information to conclude his evaluation and report.
- If the case is to be settled (and I believe that 90% of them are) then this is all that should be required.
- Should the case go to trial, and should it be necessary, additional records can be sent to the medical expert for review in preparation for trial.
Editors Comment:
The costs to defend malpractice has been rising for years (see my post – Medical Malpractice Report Shows Increased Severity Despite Lower Frequency) and this is really a practical idea to help lower those costs. Once an expert receives the entire file they will be obligated to review the material. This suggestion need not be limited to just medical experts and can be used in a variety of cases where experts are retained. Experts are an expensive, necessary, part of the process, and looking for new ways to lower those costs are a good thing.
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From the perspective of a trial attorney: Unfortunately, the recommendations in this piece are contrary to the best interests of the client. First, when a medical expert is deposed, the fact that the witness was not given all of the records will be a huge point to discredit the expert. Juries will automatically believe the expert to be biased as he/she was willing to reach opinions based on trusting the lawyer to provide the relevant information. That impeachment will not change merely by providing all the records later because at trial, only two things can happen: (1) the newly reviewed records cause some changed opinions (proving that the reliance on the attorney was incorrect), or (2) the opinions remain the same, but the jury is still told the expert made up his/her mind before receiving all of the records.
Additionally, in Illinois, one would have great difficulty informing the other side after a deposition of the expert was taken that additional records were reviewed. The result would likely be a second deposition of the expert (adding to costs) or an order preventing the expert from telling the jury he/she reviewed all of the records.
I sympathize with the high cost of medical experts, but perhaps the starting point is the high fee charged by the experts for reviewing materials. If it is true that a paralegal can easily cull through the records to filter out the irrelevant material (a point with which I disagree), then why would the medical expert charge just as much for reviewing that irrelevant information? I know it is a tough issue and I don’t really have a good answer to it but I do not believe that preventing the expert from reviewing everything at the beginning is the way to go about it.
Steve Pietrick
Chicago, IL
I have to agree that skimping on the documents one provides to a trial expert is being “penny wise and pound foolish.” You could save money on defending the case, but end up paying a lot more by losing it at trial.
An alternative that we have been experimenting with at our firm (Peltz & Walker, in New York City) is to reduce defense costs by streamlining and better managing medical data at the start of the case. Nurse consultants do a great job of preparing chronologies. But, data needs to be organized better, even before they get the case. Better data organization means using software (such as CaseMap or Concordance—we use CaseMap) to create a searchable database of all relevant medical information. (This allows counsel to read a fact in the chronology and then click a link next to it which takes him/her to the actual page of the document from which that fact was obtained.) Better data management reduces inefficient and expensive repetitive file reviews. It allows instant access to counsel and claims staff to information via many routes: by timeline, by health care provider, by hospital, by medication, by issue, and so on.
Here is what we have been doing on a test basis: records are scanned and run through for optical character recognition. Indexes of key medical terms are created automatically. Relevant handwritten notes are entered into the database so that they, too, are searchable. All this is a preliminary to having nurse consultants prepare the first chronology. It makes their work easier, faster and issue-focused. It permits them to provide not just a chronology, but helps them red flag key issues in the case for counsel. It helps them pick up charting errors, too. I believe that nurse consultants should be used throughout the discovery phase to keep the database updated, as more facts come in, and new theories come to light.
At our firm we have experimented with these systems with promising results (although we have used physicians instead of nurse consultants—the physicians are with an offshore outsourcing company, which has also done the pre-review digitization to make the data searchable).
I do not think this kind of a database could be shared with the trial expert without waiving the attorney work-product privilege. But, it would provide trial counsel with a vast database of information with instantaneous pinpoint search capability. This would be a powerful tool for trial preparation and at trial.