Doctor’s evaluations of people who have suffered accidents are often the single most important factor in obtaining a high settlement or verdict. Without those evaluations, we are only speculating as to someone’s future condition. There is a time and place for lay testimony. However, opinions, conclusions and prognostications (as opposed to descriptions of how someone is feeling) is the province of the medical professional. The appropriate objection to a lay opinion or lay conclusion is that such witness is “not competent” to testify to such matters. We know that the conclusion must come from the doctor but how do we best present that opinion? Furthermore, in the likely event that we need a prognosis, how do we go about getting that opinion?
A board certified doctor is the individual who is the most logical to speak on these matters. A doctor who is not board certified may be competent to testify but would not be the most persuasive witness. The standard to which the doctor renders opinions on causality– the connection of the accident to the injury– diagnosis and prognosis is “to a reasonable degree of medical certainty.” That is the “tagline” of such questions.
An interesting wrinkle in all of this comes in the circumstance where you ask the doctor to give an opinion as to the injured party’s long term prognosis. Again, that prognosis must be “to a reasonable degree of medical certainty.” We are talking about civil cases, so the standard for evidentiary proof is “more probable than not.” It is not to a reasonable doubt. Sometimes, I have seen the civil standard compared to a 51% likelihood. Take the following hypothetical: an individual has been injured in an accident and suffers a fracture of a bone. That individual may develop post-traumatic arthritis. However, the doctor may find that the likelihood of post-traumatic arthritis is in the statistical realm of 40%. That is not more probable than not. Am I therefore precluded from obtaining that testimony? The answer is no, I am not. The proper way to elicit such a conclusion from the medical expert is whether my client is at “an increased risk of developing that condition.”
In the above example, a person’s risk may go from 3% to 40% because of having had that accident. As scientists say, their relative risk is greatly enhanced. In no way should the standard of “more probable than not” preclude such evidence– evidence which is very significant in determining the value of a personal injury case.
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