Writing a Decent Med-Legal Report - Part 1

Saturday, June 7, 2003 | 0

One of the most frustrating things for an attorney involved in workers' compensation litigation is a poorly written medical-legal report. The basic reality is that there simply are not enough physicians that know how to write good, soundly supported medical reports, let alone solid, rateable, permanent and stationary reports. This comes down to education: what the required essential elements to a medical-legal report are, and what constitutes a good, rateable description of permanent disability. We will explore these concepts in this, and following, articles. This article deals with the essential elements.

First, let's go over the basics of a medical-legal report. Medical testimony in workers' compensation cases is most typically done via medical reports. The reason is that the volume of litigation would keep most physicians out of the office and from performing exams that are the basis of reports. Recognizing this reality, Regulation section 10606 provides that the favored method of taking medical testimony is via medical reports. This places the burden on the physician to ensure that the report itself can withstand evidentiary scrutiny.

Medical reports must comply with specific elements to be considered a medical legal report. These elements are set forth in Regulation 10606. In addition, there is the more amorphous rule that a medical report must stand the test of weight; i.e. that the report is sufficiently substantial to enable a trier of fact to rely on the opinion in the face of opposing opinions. While the technical requirements of 10606 may be met, there must be sufficient reasoning, supported by sound medical science, for the conclusions of the report to be supported.

The list in 10606 is specific, and is set forth below. The physician, when preparing a report, would do well to have a checklist to ensure that all of the required elements are fulfilled. This can simply be a reprint of 10606.

In addition to Rule 10606, though, the Industrial Medical Council has established required protocol for medical-legal reports concerning specific injuries: Psychiatric (IMC Rule 43), Pulmonary (IMC Rule 44), Cardiac (IMC Rule Rule 45), Neuromusculoskeletal (IMC Rule 46), Immunologic (IMC Rule Rule 47). Under Lab. Code section 4628, failure to follow the specific evaluation protocol may make the report inadmissable before the WCAB:
"These protocols must be followed in all QME evaluations and set forth the areas which must be addressed or considered in conducting an examination and composing your conclusions," warns the IMC in their "Physician's Guide".

The required elements of a medical-legal report, in summary, are:

_ Summary form (for QME and AME)
_ DEU Form 100 is included (unrepresented QME only, report must contain comments about the form)
_ DEU Form 101 is included
_ Date and location of the exam
_ Statement that the physician actually performed the examination
_ Time spent face to face with the injured worker
_ Listing of material reviewed or relied upon to prepare the report
_ History of the present injury or illness
_ Present complaints
_ Medical history including injuries, conditions and residuals
_ Findings of the examination, including laboratory or diagnostic test results
_ Diagnosis
_ Factors of disability: subjective, objective, work restrictions, estimate of loss of pre-injury capacity
_ Opinion on whether permanent and stationary
_ Cause of the disability (work caused/work contributed)
_ Treatment currently needed
_ Future medical treatment where reasonably, medically probable
_ Vocational Rehabilitation
_ Apportionment of disability, if any
_ Reasons for opinions
_ Disclose the name and qualifications of anyone who assisted in report
_ Mandatory declaration in its entirety
_ Statement concerning that physician did not violate LC 139.3
_ Original signature of physician with the date signed and county noted

Our next article will review some of the specifics of each of the required elements in more detail.

Physicians are encouraged to be familiar with the IMC's "Physician's Guide".