Lecture by Dr. Armin Feldman – Episode 441

In today's presentation, Dr. Armin Feldman explains why medical legal consulting is popular in this excerpt from his Nonclinical Career Summit lecture.

He shows how doctors can use their clinical skills to help attorneys settle civil cases more effectively while avoiding the stress and exposure of traditional expert-witness roles.

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Defining Medical Legal Consulting

Dr. Feldman describes medical legal consulting as a new branch of forensic medicine. It is focused on civil cases, pre-trial and pre-litigation, where physicians answer medical questions for attorneys rather than serve as experts in court.

The work is not specialty-specific and centers on helping lawyers understand injuries, mechanisms, causation, ongoing problems, and appropriate care. This enables them to negotiate and settle cases, often in 80–90% of matters that never go to trial.

Services Attorneys Actually Need

To give a concrete feel for the role, he walks through the services he performs most often:

  • comprehensive medical summary reports that synthesize all records and outline damages, future care, and costs;
  • focused reports answering specific medical questions and supporting or refuting a theory;
  • observing independent medical exams and writing IME rebuttals; and,
  • standalone future medical care and cost reports.

These deliverables help attorneys increase case value, save time, and secure appropriate treatment for clients. And the work is intellectually engaging, well paying, and allows the clinician to apply their medical knowledge and experience without direct patient care or on call duties.

Summary

Dr. Feldman’s approach opens up a very different path, one built around pre-trial consulting, written and verbal opinions, and advocacy for injured clients through their attorneys.

NOTE: Look below for a transcript of today's episode.

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Transcription PNC Podcast Episode 441

Why Medical Legal Consulting is Popular Now

- Lecture by Dr. Armin Feldman

Dr. Armin Feldman: For the past seventeen years, I've been a full-time medical consultant in legal cases. And it's important to say, I don't act as a medical expert and I don't participate in medical malpractice cases. There is a big difference between a medical consultant and a medical expert in legal matters. In fact, they are two completely different things.

So when doctors and lawyers think about lawyers hiring doctors, they only think of one thing, and that's hiring doctors to be expert witnesses. Over 17 years ago, I started, and now through the years, I've been refining a new branch of forensic medicine that involves working as a medical consultant in civil as opposed to criminal cases.

All of this lucrative work, it is pre-trial, pre-litigation, and the work is not specialty specific. Any doctor in any specialty can learn to work as a medical consultant in legal cases. I answer any kind of medical question an attorney has in their ongoing cases, and you can too.

In all of our work, we help attorneys to negotiate and settle cases for better value and save time. In addition, we're helping attorneys to get the appropriate medical care for their clients, as well as helping attorneys negotiate all the medical issues in their cases.

Now, I also want to say that the work is really rewarding. I'm helping people who would not have otherwise been afforded the medical consultation help that really they desperately need.

Now in the areas of the law in which I consult, personal injury and workers' comp, approximately eight or nine out of every 10 cases set up. In other words, the cases are negotiated and then a settlement is reached and the case never goes to trial.

So, anything that we can do as physician medical consultants, as opposed to medical experts, to help attorneys negotiate and settle cases for increased case value with less attorney time is very, very appealing to many attorneys. Actually, to most attorneys.

You'll be providing well-reasoned and researched medical opinions, reports, and other services that any good physician can learn to provide.

Now, it's important to understand that under the law, in our legal system, physicians can give medical opinions about medical questions, and particularly in cases that are settled. Now, no one expects me to be a walking, talking encyclopedia of medicine in order for me to give good answers to attorney questions. The attorneys know I'll need to do research. I charge for my research time and the attorneys really don't have a problem with that. In fact, they actually expect it.

Now, I want to drive home the idea that I'm acting as a medical consultant to attorneys. I am not acting as a medical expert. That means I am not going to trial. I'm not in depositions. In all the 17 years that I've done this, I have never been deposed. I went to trial as an expert once as a favor to the attorney out of over 3000 cases that I've done because the physician that she wanted to use had retired.

Now at this stage of the case, that is negotiating for the case for settlement, what the attorney needs are medical opinions, well expressed in either written or verbal reports. as well as other specific services I'll talk about.

Now, I'm not asked very often about my specialty. Attorneys are much more interested in knowing if my reports, medical opinions, and other services will help them to settle their cases for more money, help them get the appropriate treatment for their clients, and negotiate all the medical issues in the case.

Obviously, if the case is going to court in that one or two out of 10 cases for which you'll consult that doesn't settle, that is where the attorney will do depositions and go to trial, well, the attorney will need medical experts in every area of injury.

Now, what I've come to understand is that until I started doing this work over 17 years ago, there certainly were medical experts. There were not physicians trained and providing medical consultation services to our legal system. As I said, I answer questions for attorneys that cover the entire field of medicine.

So when I first decided to consult to attorneys on all things medical, I really didn't know what kind of consults I'd be doing. And I'm going to explain in some detail the services that I perform routinely in just a few minutes. And these are the consultations and services that you'll routinely do if you start a medical legal consulting business.

Now, I developed many of these services over the course of about the first two years after I started my medical legal consulting business and I've built on that list over the years.

What I've also come to understand is that the services I'm about to elaborate on are unique. When I first started consulting on all things medical, I looked around the country to find other doctors doing this kind of work. Now, I'm sure there must be some, but I couldn't find doctors doing the kinds of consults I'm about to describe and specifically offer them as a package of services to attorneys.

Now that there are doctors coast to coast trained by me and using my system, in fact, none of them have told me that they have found pre-existing competition. Now, when you start meeting with attorneys, some of them will say, I've never heard of a doctor doing these kinds of things. It's not how I do things and I don't want to start now.

However, many attorneys, if not most, they understand how these services will be of value to them and their clients and specifically how these services will help them to increase their bottom line.

Now, as more and more attorneys become aware of these services, the demand for medical legal consultants continues to grow.

Now, not all attorneys think these services are the next best thing since sliced bread. However, many, if not most attorneys will get it, as I mentioned, and these attorneys are certainly willing to try you out on one case. Enough of those attorneys will start using you routinely.

Now, routinely could be twice a year for one attorney. And it could be on every case the attorney takes in for another attorney. So it doesn't take long to determine how many attorneys you'll need in your unique referral base for you to work full-time or the part-time hours that you desire.

I want to give you a feel for what it actually means to be a medical legal consultant. So let me go through some of the services that you'll provide.

So the service that I perform most is providing comprehensive medical summary reports. Now medical summary reports are just that, a complete review of the case and all the associated medical problems and injuries, including my medical opinions based on my review of the medical records, my interview with the client of the attorney, and my review of the pertinent medical literature.

So medical summary reports can be used in two ways. The reports can be used to help the attorney do the medical coordination on the case. That's their language, to do the medical coordination on the case.

However, far and away, far, far and away, the reason attorneys have me prepare medical summary reports is to include the report as part of their settlement demand letter.

Now, as part of a settlement letter, the attorney does need to give a description of damages, including the medical conditions caused by the accident or the injury.

Now, many attorneys will write this section of the demand themselves. Attorneys may also have help from a trained paralegal, a nurse perhaps, or a physician assistant. It is extremely unlikely any attorney you encounter will have a physician writing comprehensive medical summary reports. In fact, it's likely that I was the first physician in the country to offer this service to attorneys.

So in the settlement letter, the attorney will write a section on damages and, in addition, have my medical summary report concerning the medical damages, including my medical opinions, in the settlement demand letter as well.

Now, attorneys will certainly have medical records from the treating doctors. They might even have a medical report from one or two of the treating doctors about their part of the case. Although I'll tell you that's actually quite rare, attorneys will not have a comprehensive medical summary report that synthesizes all the data and encompasses the entire case, including — and this is important — my medical opinions about ongoing medical problems, about causation, about mechanism of injury, functional losses, future medical care and costs, all backed up by evidence from the medical literature.

Let me just give you the headings of each section of this type of report.

So it starts with a very brief introduction, and then I always give all the records that I've reviewed from beginning date to the ending date.

The next section is a brief history of events. Really, this is the history of the present illness. It's the history of the accident or the injury, plus some of the treatment that the client of the attorney has had.

Then there's a section on pertinent verbatim records, which back up and help to understand the medical opinions that we derive in these reports.

Then there's a section on ongoing medical problems. This is where all of the medical damages are described. I give my medical opinions about that.

There is then a section on medical costs that have been incurred to date.

Then there's a discussion section in which I give my medical opinions, backed up by evidence from the medical literature, about the injuries and the medical damages in the case.

That's followed by a section on future medical care and costs.

And then there is a brief summary.

Now, the consistent feedback that I've been getting for many, many years is that by using my medical summary reports, attorneys are, in fact, settling cases for better value with less attorney time. Some attorneys will ask me to write a medical summary report for every case that they take in.

All right. Another thing that I do routinely and almost as often as preparing comprehensive medical summary reports is to do reports that answer specific medical questions in cases.

Now, I have answered literally hundreds and hundreds and hundreds of these questions, usually providing a written report.

Now, sometimes, by the way, the attorney only needs a verbal report. So let me give you an example of this kind of a case.

When we do this, what we're typically doing is helping the attorney to prove up a particular medical theory for the case.

Now, sometimes we'll tell the attorney, I don't think that your medical theory holds any water.

I wouldn't pursue that. But most of the time, we're probably on the other side helping the attorney to prove up a particular medical theory for the case.

Okay, so this is a case of a 22-year-old woman stopped in traffic who was rear-ended. Approximately six hours after the accident, the woman had acute appendicitis and she had an appendectomy.

The attorney wanted to know if I felt the appendicitis was related to the accident.

Now, I can tell you when I was on the phone with the attorney, I was quite certain that there probably wasn't any kind of connection. Then I went to the medical literature and I found out that blunt force trauma to the abdomen can, in fact, now especially in teens and young adults, precipitate appendicitis.

Well, when I interviewed this client, it turns out that in the accident, even though properly restrained, this 22-year-old woman was thrown forward with a great deal of force and had significant blunt force trauma to the abdomen caused by the steering wheel.

Now, based on the medical literature and the client's history and medical records, it was my opinion to a reasonable degree of medical probability that the acute appendicitis was accident related, and I wrote the report.

And by the way, based on my report alone — no other experts, no other physicians involved — the appendicitis and subsequent surgery was a damage in the negotiated settlement. So it was a damage in the case.

Now, the activity that runs a close second to writing medical summary reports and answer question reports is independent medical exam observation and writing IME rebuttal.

So let me digress for just a moment and say a few words about independent medical exams.

These exams, IMEs, they used to be called second opinions. Now, sometime during the 1980s, insurance companies started paying doctors to do second opinions for them, and they changed the name of this activity to independent medical exam.

Now, I know that there are very good doctors who do very good IMEs. I know there are doctors participating in this event who do IMEs. So let me say this again so I'm perfectly clear: there are very good doctors who routinely do very good IMEs.

And I'm not usually asked to sit in and observe those IMEs, although I'll tell you some attorneys have me observe every IME for every one of their clients, no matter the doctor.

Now, here's what I also know. In every community across the country, there is a group of doctors who make all of their income or a good portion of their income doing IMEs.

You need to know that 95% of all IMEs are paid for by insurance companies, usually through brokers.

Now, these doctors are under tremendous secondary gain pressure. The fact is, if they don't consistently come down with opinions that favor the insurance position, the insurance companies will find doctors who do.

Now, I'm being a little bit facetious. However, I think there are doctors in Denver who do IMEs who have never actually seen an injured person.

All right, going back.

80% of the IMEs I observe in Colorado are in workers' compensation cases and approximately 20% personal entry cases.

Now, workers' comp rules vary state to state. However, for the most part, they're at least similar. In Colorado, a physician representing the claimant can't be excluded from the IME.

In PI cases, whether I'm allowed to observe the IME, if the case has been filed with the court, may go through a process of steps and may come down to a hearing with the judge.

By the way, I'm not involved in that hearing. That's between the two attorneys.

Now, you can check with your state or an attorney that you know in your state to find out your state rules.

So now let me digress for another moment.

I always work on the side of the quote little guy, going up against the insurance companies, often their own insurance company denying legitimate claims.

In PI cases, personal injury cases, the quote little guy is the client or plaintiff, and the insurance company is the insured or the defendant.

In workers' comp cases, the quote little guy is the claimant, and the insurance company is the respondent.

Now, interestingly enough, an IME doctor can refuse to have the spouse of a claimant or a plaintiff in the exam room, but the doctor can't refuse the claimant or plaintiff having a physician present on their behalf.

Now, and I think I know I was the first doctor to observe IMEs in Colorado and, again, probably in the country.

Now, after the IME report comes back and is read by the attorney as unfavorable to the case, and of course, if my opinion is such, I'm often asked to write an IME rebuttal report.

I base my reports — and again, this is important — on my review of the medical records, my interview with the client of the attorney, my observation of the history and physical in the IME, and my review of the pertinent medical literature.

Now, in IME cases, I always read the medical records. Then I interview the client of the attorney, and then I attend the IME for observation.

Most of the attorneys will have an IME preparation meeting with their client. Usually, the attorneys request that I attend that IME prep either in person or by phone or by Zoom meeting.

Now, if there's no prep meeting, I just interview the client by phone or by Zoom prior to the IME.

Now, let me say a few words about IME rebuttals. So if the question is whether the client should have this particular surgical technique or that, well, I'm not qualified to make that determination.

Now, I can tell you in over 17 years, I have not felt comfortable writing a rebuttal report maybe a dozen times. And as I've said, I've done over 3,000 cases.

However, let's say a client tears their rotator cuff at work, goes through conservative treatment, and then needs a rotator cuff repair and surgical repair. And then after that goes back to the surgeon who did the surgery with continuing symptoms after appropriate post-surgical treatment.

They say, "I still have pain. I still have loss of range of motion. I still have loss of function."

And so now, in this case, the surgeon recommends, "Well, as I told you, it doesn't happen very often — but in your case, I think we need to do a revision surgery."

The insurance company says, we couldn't possibly pay for a revision surgery without an IME.

I observed the IME. The IME report comes back, and the IME doctor says the revision surgery, it's not indicated.

Well, I'm capable, you're capable, any good doctor is capable of reading about rotator cuff tears, reading about rotator cuff repair surgery, and then going to the medical literature and reading about the indications for rotator cuff revision surgery, and then writing a report based on the medical records, their interview with the client, their observation of the history and the physical in the IME, and the review of the literature.

In fact, this is one of the fun things about this job. You get to learn a tremendous amount of medicine.

If you love medicine, if you actually — I mean, school's hard, but if you enjoyed med school and you get a kick out of medicine — you don't have to just stay in your lane. You can learn a tremendous amount of medicine.

Now, I'm in no position to do any orthopedic or neurosurgery, but I would certainly put my knowledge base of spine injuries, rotator cuff injuries, any number of things up against anyone because I'm constantly reading the medical literature, the current medical literature.

Now, if my opinion differs from the IME report, I'll write an IME rebuttal.

Now, fortunately or unfortunately, depending on how we want to view it, about 90% of the time I disagree with the IME doctor.

Now, I do this work full time. So on average, I go to three or four IMEs a week and I write at least two or three IME rebuttal reports a week.

Obviously, if you're doing it on a part-time basis, you can adjust that.

Okay, I also prepare reports specific to future medical care and costs. Now, it's been my experience through the years that many attorneys, even very good attorneys, tend to underestimate future medical care and costs. Obviously, they're not physicians.

Now, as you know, I include future medical care and costs in my medical summary reports.

Now, what's happened over time is that some of the attorneys for whom I've prepared medical summary reports began to ask me to produce a report that is exclusively future medical care and costs.

In fact, some attorneys now have me provide this kind of report routinely for their cases.

So you'll wind up writing medical summary reports for some attorneys and future medical care and cost reports for others.

Now, let me say something about these reports.

First, I am not prescribing treatments for patients. I'm offering my medical opinions about treatments and the cost of those treatments to the attorney so they can advocate for their client in the settlement process.

My client is the attorney. It is not the injured person. It's not the attorney's client. My client is always the attorney.

Now, in addition, we are not holding ourselves out as expert certified life care planners. What we're always doing is giving our best opinion to a reasonable degree of medical probability.

We're not expected to be accurate down to the last dollar. We're asked to give our best honest and researched opinion regarding future medical care and costs and, for that matter, about any question that we're asked.

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