If you’re entering the medicolegal field, the many types of testimony may be daunting. Here we’ll demystify common cases in California that require an Orthopaedic Surgeon to provide testimony.
QME/AME:
These are neutral testimony for litigated Workers’ Compensation claims. The work is highly systematic and can be predictable. There is no need to go to court for these cases. The fee schedule is set by California law.
In California, Workers’ Compensation cases do not go to trial in the traditional sense that you might see in civil or criminal court cases. When Workers’ Compensation programs were being adopted in the 1900s, one of the basic principles agreed upon by all states was that benefits could be provided to injured workers without regard to fault and in return, employers would face limited liability. This essentially meant that workers would be entitled to benefits if their injury was caused by their workplace, and employers would be responsible for specific benefits in exchange for the elimination of lawsuits for negligence. This was known as the “Great Compromise.” In today’s age, Workers’ Compensation cases are resolved through a specialized administrative process specific to Workers’ Compensation claims. The process starts when an employee is injured or becomes ill due to their work, and they then file a Workers’ Compensation claim with their employer’s Workers’ Compensation insurance carrier (which is mandatory for employers in the state of California). Any injury requiring more than simple first aid becomes a Workers’ Compensation claim. The insurance carrier evaluates the claim to determine if it is valid and if benefits should be provided; they may either approve or deny the claim based on their assessment. If there is a dispute between the injured worker and the insurance carrier regarding the validity of the claim, the dispute requires a neutral medical expert to evaluate the injured worker, known in California as a QME or AME.
However, if a settlement is still not reached, the QME’s testimony will be presented to the judge (trier of fact) through an administrative hearing at the DWC. These hearings are less formal than court trials but follow specific rules and procedures; juries are not involved in these hearings. In most cases, disputes can be resolved through mediation or negotiation before a hearing and parties can reach a settlement agreement, which is subject to approval by a WCALJ. If either party disagrees with the WCALJ’s decision, they can appeal to the Workers’ Compensation Appeals Board (WCAB). WCAB then reviews the case and issues a final decision. It’s important to note that the Workers’ Compensation system in California is designed to be less adversarial and resolve disputes efficiently and fairly through the administrative process rather than through traditional court trials. In addition, it allows for appropriate attention for the high volume of injured workers in California through highly regulated procedures.
Expert Witness-Personal Injury:
These are cases where a physician is selected by either the plaintiff or defense to provide a medical opinion on an injury case, such as a slip and fall, or automotive collision. These can also be highly catastrophic work injuries.
In a Personal Injury case, there may be three types of physician testimony: Plaintiff (injured party), Defense (party being sued), and Treating Physicians. The treating physician offers testimony often as a fact-witness to corroborate facts of the case. At times, the Plaintiff attorney will ask the Treating Physician to also perform expert witness work for a fee. As a Plaintiff-sided Expert Witness, the physician is paid by the representation of the injured party to discuss the causation, diagnosis, prognosis, and recommended treatment in a personal injury case. Similarly, a Defense-sided Expert witness does so at the expense of the defendants. This information is considered in a settlement or in court. Nationally, only 4-5% of these cases go to trial, and the likelihood of success on the side of the plaintiff is about 50%. Therefore, there is high pressure to settle outside of court. An expert witness may be asked for record review, a physical examination, a deposition, and appearance in court, in any combination of those. A retainer is usually agreed upon according to a physician’s fee schedule and collected in advance to ensure appropriate payment for services rendered.
In the realm of Personal Injury cases, an attorney’s goal for their client is to go to trial and/or reach a financial settlement for their client. Expert physicians’ input is crucial in helping judges, juries, and attorneys understand complex medical matters and make informed decisions. With Personal Injury cases, the process often begins when the injured party (the Plaintiff) consults with a Personal Injury attorney, who then assesses the case’s merits, potential liability and damages. If the Plaintiff decides to proceed with the case, their attorney files a complaint in the appropriate court. Once the complaint is filed, the Defendant must be served with a copy of the complaint and a summons, officially notifying them of the lawsuit and need to respond. Once the Defendant responds, either admitting or denying the allegations, the discovery process begins, which involves exchanging information and evidence related to the case. This can include interrogatories, requests for documents, depositions, and expert witness disclosures. As an Expert Witness in a Personal Injury case, you will be a representative for either the Plaintiff or the Defense side. As a Plaintiff Expert, you will be representing the party who brought the lawsuit and providing expert testimony and opinions to support the Plaintiff’s claims and case. Your main role is to help establish liability or damages against the Defendant. As a Defense Expert, you will be representing the party being sued and provide expert testimony and opinions that counter the Plaintiff’s claims and case. Your role is to challenge the Plaintiff’s allegations, establish defense, or minimize damages. Testimony will likely be required if you are representing either side and the case goes to trial.
Throughout this process, the parties may engage in settlement negotiations, seeking to resolve the case without going to trial. Settlements can occur at any stage of the litigation. If no settlement negotiations occur or they are unsuccessful, the case will go to trial. A jury will be selected and deemed responsible for returning a verdict at the conclusion of the trial. During the trial, the Plaintiff and Defense experts will present their testimony and be cross-examined by the opposing sides. Once the jury delivers their verdict, which in civil cases is based on a preponderance of the evidence, and there is no appeal, the case concludes and any damages awarded to the Plaintiff are enforced.
Expert Witness-Medical Malpractice:
Similar to Personal Injury claims, there is a witness for Plaintiff and Defense. We do not recommend beginning a legal practice with these types of claims as they are more advanced. Please ask us more about these if they are of interest to you.
SIBTF:
Subsequent Injuries Benefits Trust Fund cases are for injured workers who have another injury, with a combined total permanent disability of at least 70% impairment. These are complex, multidisciplinary cases that require a careful history and physical examination. These allow employers to hire previously disabled workers while avoiding risk of being held liable for the prior disabilities.
As SIBTF cases operate within the same wheelhouse as Workers’ Compensation cases, the process of evaluating these injured workers is similar. As the evaluating physician, you must be able to determine the following: that the employee has a pre-existing permanent partial disability which may be industrial or non-industrial in origin, that the employee has a subsequent industrial disability, that the two disabilities combined are greater than what the employee’s disability would have been if the employee suffered only the subsequent and not the pre-existing disability, and that the two disabilities combined must be equal to 70% or more.
Department of Labor:
Similar to QME work, these are litigated claims for injured non-military federal workers. These cases are governed by federal workers’ compensation laws, primarily the Federal Employees’ Compensation Act (FECA). Examples of civilian Federal jobs are postal workers, FBI agents, Social Security Administration employees, and Department of Justice employees, among others. There are 152,000 Federal employees in California. These are similar to QMEs in many ways but use the 6th Edition of the AMA Guidelines. Becoming a QME in California is not necessary to perform Department of Labor evaluations.
Unlike a Strike Panel for QME work, a physician may receive a referral from the injured federal employee’s supervisor, or the DOL’s Office of Workers’ Compensation Programs (OWCP). The referral will specify the reason for the evaluation and may include relevant medical records. A comprehensive physical examination is then typically required to assess the extent and nature of the worker’s injuries. After this examination, the physician may be asked to provide an impairment rating using the 6th Edition of the AMA Guidelines, which will help assess the degree of permanent impairment resulting from the work-related injury or illness and plays a role in determining disability benefits. The physician will then be asked to opine on causation and whether the worker’s injury or illness is work-related. A functional capacity evaluation (FCE) may be required to assess the worker’s ability to perform job-related tasks. The FCE helps determine if the employee can return to work and, if so, in what capacity. After the evaluation, the physician will then compile a report of their findings from the examination. Physicians performing evaluations for DOL Workers’ Compensation cases must comply with FECA regulations and guidelines. They must also be aware of any specific requirements and forms provided by the DOL or OWCP for documenting their evaluations.