Writing a Decent Med-Legal Report - Part 2

Sunday, June 22, 2003 | 0

In our last article we went over some of the basics necessary for a medical-legal report, including the required elements specified by Regulation section 10606. As promised in the earlier article, we now shall begin a review some of these required elements in more detail, and specifically in this article, prior medical history.

One of the greatest downfalls in a medical legal report is the history section of the report. Physicians that do not regularly prepare medical reports for evidentiary purposes often forget that prior medical history is perhaps more relevant and important than the history of how the accident occurred. Many medical legal reports are either excluded from evidence, or not relied upon as evidence, because the prior medical history either failed to disclose a significant or relevant, event, injury or disability, or there was insufficient exploration or discussion of such in the report.

Workers' Compensation Judge Pamela Foust explains in her work, "Handling Medical- Legal Issues: An Analysis and Proposal," Conference of California Workers' Compensation Judges, Los Angeles (1992) at page 32, that the purpose of the history section is to provide
". . .sufficient information regarding the nature of the injury and the patient's relevant physical or emotional condition before, after, and during the alleged injurious exposure to understand what the applicant is claiming happened to him and why. . . A skilled attorney will know what questions to ask to present his client's story in the best light at trial. Likewise, a skilled forensic doctor who believes there is merit to an applicant's case from a medical standpoint will be able to elicit information and report the facts in such a manner that the reader will understand the basis for applicant's claim."

While the IMC's Physician's Guide makes note that "[t]he report must include a comprehensive and factual account of the industrial exposure, the applicant's complaints, and the treatment the applicant has received", not enough emphasis is given to the topic of the past medical history, and a discussion on whether earlier medical issues do or do not have a bearing on the present injury or disability.

"The applicant should be questioned about any pre-existing injuries or conditions in the affected part of the body," the IMC Guide states. "This section should also report other conditions or disabilities that may affect the degree of disability this injury has caused. For example, an applicant who had previously lost the use of his right leg will suffer greater disability from an injury to his left hip than a previously unimpaired person. Workers' compensation recognizes certain combinations of impairments as total disabilities, even though either impairment by itself is not considered totally disabling."

Critical is a review of injuries or illnesses to systems that may potentially have some bearing on the injured worker's disability status. The Guide gives one example above in favor of the injured worker. But would it be relevant to an inhalation case if the injured worker had previously suffered a pneumo-thorax? It may or may not be, but if your medical report does not include mention of such it could be fatal and render the report insufficient for evidentiary purposes.

While the Guide makes mention of "other conditions or disabilities", not enough emphasis is given to the topic from a legal point of view on this issue. Prior medical history should be one of the most thoroughly discussed sections of the report, and any implicating prior situations must be reviewed, discussed, and dealt with.

The Physician's Guide also provides that you should consider information from medical records that have been provided for the examination and that you should discuss with the injured worker any discrepancies between the records and history supplied by him, noting inconsistencies in your report. Remember that it is not the job of the physician to adjudicate credibility ￯﾿ﾢ￯ﾾﾀ￯ﾾﾓ that is the job of the workers' compensation judge. Consequently comments placing into question the injured worker's truthfulness are inappropriate, and actually may be damaging to your report because it may be construed as bias. Factual statements, such as "the medical record reflects a prior incident on 1/1/02 but the injured worker denies this", are more appropriate. Point out the discrepancy, but don't editorialize on it.

The above discussion on prior medical history is not meant to discount the importance of the present history, and in particular the history leading up to the injury or illness in question. Sometimes, and in particular with continuous trauma cases, the history dealing with the injury in question can be more important than the prior medical history.

The Physician's Guide says that the nature of the claim will determine how extensive this history must be, making a distinction between cumulative trauma and specific injury cases: "Injuries resulting from cumulative trauma or occupational illnesses will require a detailed explanation of the applicant's job duties, the conditions of the injurious exposures, including the approximate time spent on the tasks in question, and the temporal relationship between the exposure and the symptoms￯﾿ﾢ￯ﾾﾀ￯ﾾﾦ The history for a specific injury should describe the activity that immediately preceded the accident and how the accident occurred. Wherever possible, you should provide relevant details, such as the approximate weights of objects, the worker's position while performing the task that resulted in injury, the height of a fall, or the names of chemicals to which the worker was exposed. If the worker or employee provides material safety data sheets (MSDS) or other exposure documentation, you should attach them to the report."

The Guide also notes that the physician should ensure that information about post injury events, as well as information that may implicate the employer in serious and willful misconduct should be set forth in the history section of the report. Again, a factual dissertation, as opposed to editorial or judgmental language, is important to ensure that your report is viewed as a professional opinion.