Expert Witness – A Day in the Dock

An interesting whiplash case

Expert witness work is not a pastime I actively pursue but inevitably get involved as part of routine clinical work.  Needless to say the spectrum of cases ranges from those with significant disabilities unable to work to those with modest functional discrepancies where the glass is ‘half empty’ instead of ‘half full’ and of course the occasional malinger gets in the door – only to be rapidly ejected within 3 treatments when discrepancies between signs, symptoms and participation become apparent.

The vast majority of medico-legal reports I write do not get contested in court and therefore despite the usual demands to be available on a standby basis (which incidentally I don’t agree to do) from time to time one is compelled to attend court.  Over the years I have been repeatedly struck at the lack of detailed musculoskeletal evidence discussed and analysed either in evidence or under cross examination.  It is absolutely routine for radiology, orthopaedic or neuro-surgical opinions to be submitted largely unchallenged even when the patient’s condition does not warrant such opinion’s – it’s like asking a plumber to look at an electrical fault.

This has resulted in the rather trivial dismissal of musculoskeletal pain, which doesn’t involve surgery or fracture as being simple “soft tissue pain”.  As we all know pain clinics around the planet are filled with patients in this category.  As far as I am aware there is no hierarchy of neural sensitivity from nerve receptors in bone, muscle, tendon, skin or nerve tissue.  Therefore this argument of “simple soft tissue pain” is not a particularly potent one in my opinion.

I write today’s post on the basis of a recent High Court experience in which I did get a chance to spend an hour in the witness box discussing the various merits of a complex (but genuine) whiplash case. We have discussed aspects of whiplash and neck pain treatment in previous posts I had treated this patient over a 3 year period.  She had a complex whiplash syndrome (classified as GD III on the Quebec task force scale or GD IIC Sterling classification) and it was clear from the initial assessment that this was a complex case.

Without labouring details she had been….

Off work for the eight months prior to consultation

Non-responsive to previous multi-modal physiotherapy

On a cocktail of medication

Had significant sleep disturbance

Was unable to support the weight of the head

Had bilateral neuropathic upper limb symptoms

Dizziness

Was generally fairly miserable.

Her occupational health physician had referred her to me on the suggestion that a “couple of sessions” of physiotherapy would put her right to get back to work within a fortnight.  I am not sure whether we examined the same patient, but this was clearly unlikely to be the scenario no matter what miraculous techniques I performed, or Devine intervention occurred.  I wrote to inform the referring physician of my opinion, the basis for which it was made and the need to institute multi-disciplinary pain management.

Six treatments later I did indeed arrange for formal pain management assessment having worked through some selective medication recommendations.  The reason I outline the detail here, and referring back to my initial comments above about the lack of discussion regarding symptom analysis, is on the basis of the cross examination which I encountered in the witness box.

Under cross examination I was asked why did I feel it appropriate to refer this case to a pain management physician.  I duly outlined my reasons based on the duration of time off work, severity of symptoms, non-responsiveness to treatment and limited potential for structured rehabilitation based on the current findings.  As this point the judge interjected to ask if I had directly referred the patient to the pain physician.  I replied “certainly – based on clinical need”.  The judge was somewhat surprised that I had not referred back to the GP.  I explained my decision that I had spend a significant amount of time in pain societies & professional liaison groups with GP’s teaching appropriate selection of patients for pain management and that because physiotherapy is an autonomous profession (for the last 25 years) it dictated that we make decisions and stand over them.  This undoubtedly surprised the judge again!

On further cross examination I was challenged with the view that an A&E consultant had assessed this lady and determined her fit for work two weeks prior to my consultation.  I informed the barrister that I disagreed.  Both the barrister and the judge responded by seeking clarification that I “actually” disagreed with the A&E consultant who was a fellow of the society and a consultant in emergency medicine.  My response was that in my opinion the role of the emergency consultant was to rule out sinister pathology in the form of neurological or orthopaedic conditions, but that he had minimal (no) role in rehabilitation and structuring of return to work programs.

There were many other points of contention, which may provide useful points of discussion in future but it illustrated to me a systemic perception / misperception of physiotherapy within the legal profession and the unacceptable status quo of appropriate recognition of experts in musculoskeletal health – which I consider physiotherapists to be.

This lack of discussion was confounded by the fact that the legal representatives on our side had no prior consultation with me (or any of the other experts) regarding the content of our reports or the interpretation of the clinical issues presented.  Again, this seems fairly typical in my experience and perpetuates a norm that clinical issues and patient function do not get properly discussed because they are dismissed as “soft tissue problems”.

This is a battle we must continue to fight on behalf of the physiotherapy profession but at least some pertinent clinical issues were discussed within a court of law. End of round one!

Enjoy the clinical challenge.

David.

GHTime Code(s): nc 

Subscribe to the PhysioDigest Weekly Update

Get weekly updates posted direct to your email.

Name:

Email:

Powered by Subscribers Magnet