ETHICAL CONSIDERATIONS AND COMMON SENSE Matters when ENGAGING MEDICAL EXPERTS By: Eleanor P. McNulty, CEO

Contingent fee arrangements with medical experts are prohibited 204 Pa. Code Rule 3.4 Fairness to Opposing Party and Counsel provides in pertinent part as follows: A lawyer shall not: (b) falsify evidence, counsel or assist a witness to testify falsely, pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the witness’ testimony or the outcome of the case; but a lawyer may pay, cause to be paid, guarantee or acquiesce in the payment of: (1) expenses reasonably incurred by a witness in attending or testifying, (2) reasonable compensation to a witness for the witness’ loss of time in attending or testifying, and (3) a reasonable fee for the professional services of an expert witness.

Common Sense considerations when hiring a medical expert Medical Experts’ time is very valuable Asking a physician to cancel a day of office hours and/or a day in the operating room is significant Medical appointments and surgery slots cannot be “filled” at the last moment. These slots are often filled weeks or even months in advance.

Guidance saves money Identify your goals for each medical expert engagement. Submit a detailed cover letter that includes the questions you would like to have answered. Communicate with the expert. Our MyCase system has a messaging function. Send only those records/images that are relevant to the case. Of course, it is better to err on the side of over-inclusion since the medical expert should make the decision about what is relevant from a medical perspective.

Cooper v. Schoffstall, 588 Pa. 505, 905 A.2d 482 (Pa. 2006) Consider the cost of filing Cooper Interrogatories and whether you truly believe that there is “a significant pattern of compensation that would support a reasonable inference that the witness might color, shade, or slant his testimony in light of the substantial financial incentives?” 905 A.2d at 495. The trial court may require the party seeking discovery to reimburse the expert for his or her costs in answering interrogatories. Answering these interrogatories is very time consuming.

Remember what Cooper actually provides: the approximate amount of compensation received and expected in the pending case; the character of the witnesses' litigation-related activities, and, in particular, the approximate percentage devoted to specific types of litigation and/or work on behalf of a particular litigant, class of litigant, attorney, and/or attorney organization; the number of examinations, investigations, or inquiries performed in a given year, for up to the past three years; the number of instances in which the witness has provided testimony within the same period; the approximate portion of the witness's overall professional work devoted to litigation- related services; and the approximate amount of income each year, for up to the past three years, garnered from the performance of such services. Cooper, 905 A.2d at 495.

Exercise common sense tips: cooper interrogatories Make deadlines clear to experts. Remember that medical experts don’t necessarily keep records with a view towards answering Cooper Interrogatories. If your expert is tasked with answering, offer guidance and clerical assistance. Remember that if expert is working through a company (like Tucker IME) the company will not necessarily have all of the doctor’s medico-legal work data to be able to answer the interrogatories. Keep in mind that most experts have active clinical practices and that expert work makes up a small percentage of the overall time a physician spends and the money he earns.

A “conflicts check” in a medico-Legal case is different from a conflicts check in a law firm At Tucker IME we always endeavor to run our own “conflicts check.” We do this to confirm with the doctor that he or she has never treated the examinee (subject of the IME or Records Review). This is very different from a legal conflicts check. Since medical experts are “independent” and render opinions based upon objective findings applying evidenced-based medicine, neither who the client is nor what side of a case he/she/it is on really matters except, of course, in the same case. Some relationships are deemed more significant than others. Clearly, a physician cannot be both the treating physician and the person conducting an IME. However, some doctors do not feel comfortable opining in cases in which their partners in clinical practice are the treaters. Others do not feel comfortable testifying in cases wherein the treating physician is in a practice with common ownership.

Attorneys and others using medical experts must understand that physicians are subject to their own ethical rules A limited patient-physician relationship exists. IME physicians must objectively evaluate a person’s health or disability. PHI confidentiality must be maintained. Examinee should be informed of the IME physician’s role as an independent evaluator. IME physician is not a treating physician nor is he or she responsible for monitoring a person’s health over time but an IME physician must inform the examinee about important health information or abnormalities that he or she discovers during the course of the examination.