Most medical experts do not understand how to articulate their opinions on legal causation.
The pivotal issue on most personal injury cases centers on causation. A medical witness must, to a reasonable degree of medical probability, relate the injuries to the subject accident. For future pain and suffering and future medical care, the standard is to a reasonable degree of medical certainty. (Other legal foundational requirements involving medical necessity and reasonable and customary charges will be addressed in future Blogs. This blog is limited to he issue of medical causation for past injuries).
“Reasonable medical probability”, means “more probably than not probable” (51%).
“Medical certainty”, as it applies to future damages, means that future medical expenses and/or future pain and suffering are reasonably certain to occur in the future. It is a higher standard than reasonable probability.
The follow-up question in a deposition by the defense and under direct examination by plaintiff’s counsel at time of trial is: “What are the bases of your opinions on causation? Keep in mind that causation is never a slam dunk; and, no accident case that involves litigation has a perfect causation scenario. Pre-existing conditions, prior accidents, prior treatment, diabetes and osteoarthritis, even if remotely relevant, are always raised by the defense to attack causation. This is a format providing examples of responses to the question, “What are the bases of your opinions on causation?”
Most likely no attorney has ever received a medical expert report that covers all of most of these points on the basis for a causation opinion. The reason that we don’t get these types of reports is because nobody ever provides medical experts with this type of format. Now that you have this format, you can incorporate it into your medical reports and use it to prepare for your deposition and trial testimony?
If a medical expert presents no bases for his opinions on causation other than a temporal link between the injury and the accident, or that the patient relates that his symptoms began after being involved in the subject accident, this is a very weak and insufficient basis for establishing causation on an injury case.
CAP & KUDLER
3202 West Charleston Boulevard
Las Vegas, NV 89102
Phone: (702) 878-8778
Cap and Kudler was founded in 2004 by Allen A. Cap and Donald C. Kudler, two experienced Las Vegas attorneys who had worked for many years at the firm of Albert D. Massi in the areas of personal injury, general civil litigation and business transactions. Learn more.