I agree with you but………
How to produce a high quality Joint Opinion.
1.
The introduction of the Civil Procedure Rules (CPR) in 1999 paved the way for clearer roles and responsibilities for experts when producing opinions in personal injury cases. Each expert is expected to discharge his/her responsibility to the Court by producing a robust and independent report
based on available information, plus subsequent clarifications or amendments when questioned or provided with additional evidence. The pre-CPR practice of obtaining both claimant and defendant-instructed opinions continued with the increased use and expectation of ‘opposing’ experts ‘meeting’ to produce a joint opinion. (Koch & Kevan, 2005)
The aims of joint opinions are to help the Court clarify both experts’ opinions, in terms of level of agreement and disagreement. Where there is disagreement, experts are expected to explain whether this is substantive or not. As a result, the need to call the experts to court, and its attendant costs, can be reduced.
As two experts, frequently instructed by both claimant and defendant lawyers to provide psychological/psychiatric opinions, we produce on average 1-2 joint opinions per month. In this paper, we have itemised and discussed some of the key issues which are pertinent to the apparent or real clinical differences in opinions of two psychologist or psychiatrist experts in the same case.
2. Different time-lines for expert assessment.
The typical time line for the involvement of two same-professional experts is:
a. Expert 1 (instructed by claimant – side) – 1st Assessment.
b. Expert 1 (instructed by claimant – side) – 2nd Review Assessment.
c. Expert 2 (instructed by defendant – side) – 1st Assessment.
The time gap between (c) and either a) or b) can result in ‘like-for-like’ comparisons being difficult and less reliable, and result in different opinions based on fluctuation of symptoms/disorder with/without treatment or the effects of additional life events.
If the two experts are instructed at the same time, then the two resulting opinions can be compared ‘like for like’ as the claimant would be expected to present and report symptoms similarly to both experts. However, although no time-line difference exists, one other variable may occur which can predict differing opinions – that of either claimant or defendant – instructed expert adopting a style which reduces his/her objectivity and reliability by being over-accepting (‘claimant-oriented’) or over-suspicious (‘defendant-oriented’). This effect has been significantly reduced since 1999 with most experts developing an independent non-partisan, robust approach to providing balanced opinions.
3. Areas of Potential Expert Disagreement.
a) Pre accident vulnerability.
Experts may disagree about the relevance and significance of early developmental history from childhood and adolescence of, for example, depression and anxiety, emotional and physical abuse, alcohol and drug abuse.
Not with understanding single case exceptions, the following guidelines are suggested:-
1) Any vulnerability prior to 18 (i.e., during childhood and adolescence) is generally unlikely to be of medico-legal significance in assessing/attributing post-event symptoms at age 30 (approximately) and over.
2) Between 18-30, it is important to clarify if any pre – 18 vulnerability has resulted in ‘active symptoms’ during the 18-30 period especially in the 12-24 months immediately prior to the index event(s).
3) Family history (e.g. alcohol misuse, depression) and associated claimant vulnerability is rarely of significance when a careful and detailed index-event history has been taken, unless ‘active’ symptoms are detected in the immediate pre-index event period.
b) Pre-existing symptoms
Given the ‘demand characteristics’ of the claimant attending an interview which, in their view, will ultimately contribute to assessing a level of compensation, it is not unusual for pre-accident symptoms to be given less emphasis by the claimant. This is accentuated by the ‘recency’ effect of the index event. It behoves the expert, therefore, to be clear about the existence/absence symptoms during the preceding 6-12 months.
Reference to GP attendance during the preceding 6-12 months is essential to validate the presence/absence of symptoms during this period. Claimant recall is understandably less than perfect (due to anxiety, memory and motivational factors).
1) Areas of particular relevance are: The presence of prior ‘diagnosed and treated depression’: The NICE guidelines summarise the available research well when they state:
1) The history of one diagnosed and treated episode of depression is predictive of a 50% chance of a further episode later in life.
2) The history of two or more episodes is, predictive of a 90% chance of a further episode later in life.
However, the court and its experts must also take the claimant ‘as he finds him/her’ with his/her ‘egg shell skull’, and explain how an index event has/has not precipitated a psychological disorder.
2) The relevance of previous and recent similar index events: In the case of a recent prior road traffic accident, it is appropriate to state that there is a prior vulnerability to travel anxiety which ‘over the next 3 years increases the likely adverse reaction to a subsequent accident’. It is often difficult to obtain clear and reliable information about actual travel behaviour and confidence/anxiety just prior to an index event which occurred possibly 1-2 years ago. Careful behavioural analysis can help this.
c) Range of opinions in Psychological/Psychiatric opinions.
There are typically five areas of potential evidential conflict.
These are: diagnosis, prior history, additional life events, duration of index event-linked symptoms, prognosis and treatment.
Conflict arises for two main reasons:-
a) Presence/Absence of information:-
Given the single ‘snap-shot’ context of most medico-legal assessments, it is not uncommon for there to be incompleteness of information about, for example, life stresses and events. The typically later-appearing defendant-instructed expert has the opportunity to quality control/update the accuracy and completeness of the chronology of events, both related and unrelated to the index event(s)
b) Interpretation of information:-
If the index event occurs in isolation of any other life events or stresses (eg 12-24 months before or after), then the expert’s job of attribution is relatively simple and uncontroversial. However, in most circumstances, there are one or more intervening or preceding events of relevance. This is a significant source of potential variation in interpretation by each expert.
4) Post-accident symptoms, diagnosis and attribution.
In personal injury cases such as road traffic accidents, the range of possible disorders falls into three main categories as reflected in DSMIV (TR) and ICD 10:
a) Stress Disorders such as PTSD, acute stress disorder, adjustment disorders, phobic and obsessional-compulsive disorders and generalised panic disorders.
b) Depressive disorders including bipolar disorders.
c) Pain Disorders.
It is not unusual for two clinician/experts to use a slightly different diagnostic category for a cluster of symptoms. This can occur due to a claimant’s different emphasis at interview, and sometimes caused as stated earlier, by a different time lapse of interview from index incident.
The significance of this can vary, sometimes being of relatively minor importance (e.g. when one expert diagnoses an adjustment disorder with depression and the other, a depressive disorder) and at other times having greater relevance (e.g. when one expert diagnosis a psychological disorder whereas the other does not).
In the absence of other related or un-related events after an index event, attribution of psychological symptoms to an index event is relatively straight forward using the ‘But for’ theory.
This becomes more complex when other events occur. Typically broad approximations such as “minimal, 10%, 25%, 40%, 50%, material contribution, 75%, predominantly “ are used.
5) Interpretation of pain and its cause: the role of vulnerability and somatization
The explaining of pain (single site or multi site) following an index event can cause orthopaedic experts a quandary in that their medical model may only explain the pain for an approximate time period. Psychologist and psychiatrists with expertise in the psychological aspects of pain diagnosis and management will debate the possible diagnoses of:
1) Pain disorder with psychological factors
2) Pain disorder with no psychological factors
3) Pain tolerance adversely affected by stress-related psychological disorder or depressive disorder.
They will also consider and debate the level of reliability and/or truthfulness they found at interview and/or when viewing surveillance evidence.
The final piece of the diagnosis ‘jigsaw’ in the presence/absence of a somatoform disorder defined as many, multi-site physical complaints over several years before and/or after an index event, with some medical inexplicability.
Effects of ‘personality’ disturbance (including alcohol misuse)
A problematic factor for experts is to what extent a claimant’s underlying personality and general lifestyle including alcohol use ‘colours’ a reaction to a traumatic event or the way it is described to the expert.
The ‘but for’ theory is often helpful to differentiate index event-related problems from personality traits or lifestyle difficulties, however this is often not easy.
6) Treatment and Prognosis Issues
Any claimant must try and ‘mitigate his/her losses’ by availing themselves of any appropriate treatment. Similarly the expert should be making recommendations for the best available treatment to reduce a claimant’s disability if this has not already been offered by treatment agencies. It is incumbent on the experts to be up to date in discussing and agreeing on appropriate psychological and psychiatric treatments.
7) Multi disciplinary Joint Opinion
Typically joint opinion discussions takes place between experts of ‘like discipline’, however it is not uncommon for cross-specialty joint opinions, to be requested by the Court (Mackinnon, Koch and Yates 2009). This is most typically in areas of chronic or atypical pain in which any two of the following specialists may be needed: rheumatologist, orthopaedic, psychologist, psychiatric and anaesthetics/pain management. The two experts maybe on the same legal side or opposing legal side.
8) The Joint Opinion process
Experts have different methods for producing a joint opinion. Typically and logically it should, involve the following: –
a. Logical summary of areas of agreement and disagreement from both reports (produced as a written draft by one expert).
b. Discussion by email and telephone or face to face.
c. Revision of summary (as many times as is necessary).
To reinforce our opinion stated at the outset, the main aim of the joint opinion is to present the Court with a clear and relatively unambiguous summary of what the two experts believe and also, having highlighted any disagreement, to try and explain why such disagreement pertains. A survey of approximately 70 experts is currently underway to establish variation in practice and will be published early in 2011
Conclusion
Introduction of the joint opinion process has been invaluable in both clarifying reliably and validly the extent of a personal injury. It has also contributed significantly to reducing the need for experts to attend court and hence has reduced that element of litigation costs.
References:
Koch HCH, Mackinnon J, Yates K (2009). The Range of Opinions in Assessing Chronic Pain and ‘Functional Overlay’ following an accident. October 2009
Koch HCH & Mackinnon J M (2007) Understanding ongoing pain. Legal & Medical, 25 August, 13.
Koch HCH & Kevan T (2006) Psychological Injuries- XPL Press St.Albans
Koch HCH & Mackinnon J.M (2004) GP Records and the Medico Legal Process. PI compensation, August 10-12.
Koch HCH (2000) Joint Opinions or Joint Experts: preliminary review of 100 cases o trauma. PMILL 16,8,4-6 October.