Latest / Statutes & Stethoscopes | Trial Lessons for Medical Injury Lawyers / Sidebar - I Taught It Wrong

Transcript

Sidebar - I Taught It Wrong · Statutes & Stethoscopes | Trial Lessons for Medical Injury Lawyers

• 0:03
  SPEAKER_00: This is statute.
• 0:06
  SPEAKER_00: I'm Tracy Liberatory.
• 0:08
  SPEAKER_00: Every episode I take one place where medicine and the courtroom collide and break down what actually works.
• 0:14
  SPEAKER_00: You're a clinician who wants this work, or an attorney who needs an expert who can hold up.
• 0:19
  SPEAKER_00: You're in the right place.
• 0:20
  SPEAKER_00: Let's get into it.
• 0:25
  SPEAKER_00: I need to correct something that I've been saying on this show, on other people's podcasts, and in my own course.
• 0:32
  SPEAKER_00: Well, I did it as an update, and now it needs to be changed again.
• 0:35
  SPEAKER_00: I've said the standard is 51%.
• 0:38
  SPEAKER_00: More likely than not.
• 0:39
  SPEAKER_00: I said it with confidence, and a lot of you took it straight into your reports.
• 0:43
  SPEAKER_00: Part of what I said was right, part of it was wrong.
• 0:46
  SPEAKER_00: And I'm going to ask that you stand behind your opinions under oath.
• 0:49
  SPEAKER_00: I need to stand behind mine, including when I have to change them.
• 0:52
  SPEAKER_00: So today I'm going to tell you exactly what I got wrong, why I got it wrong, and what to write instead.
• 0:59
  SPEAKER_00: Let's start with the part that was right.
• 1:02
  SPEAKER_00: In a civil case, the side bringing the claim has to prove it by a preponderance of the evidence.
• 1:08
  SPEAKER_00: That means more likely than not.
• 1:10
  SPEAKER_00: People describe it as 51%, and that's a fair shorthand.
• 1:15
  SPEAKER_00: That's the burden of proof.
• 1:16
  SPEAKER_00: It's what the jury decides at the end of the case, looking at all of the evidence together.
• 1:21
  SPEAKER_00: Here's the part I got wrong.
• 1:23
  SPEAKER_00: I treated that burden of proof as if it were the phrase that you, the expert, should use for your own opinion.
• 1:28
  SPEAKER_00: And it isn't automatically.
• 1:31
  SPEAKER_00: The burden of proof belongs to the jury.
• 1:34
  SPEAKER_00: Your opinion needs its own confident language, and that language is set by each state's court, not by the burden of proof.
• 1:41
  SPEAKER_00: Those are two different things, and I blended them together.
• 1:45
  SPEAKER_00: So the recommendation was made to me by an attorney that I work with from Florida.
• 1:49
  SPEAKER_00: More likely than not is the standard they want to hear in Florida.
• 1:52
  SPEAKER_00: Here in Pennsylvania, it's different.
• 1:55
  SPEAKER_00: So it's not across the board, it's not necessarily wrong, but it's another one of those things that you need to ask your attorney about.
• 2:03
  SPEAKER_00: So let me untangle three phrases because I had them all tangled up too.
• 2:07
  SPEAKER_00: More likely than not is plain English for the burden of proof.
• 2:12
  SPEAKER_00: Reasonable degree of medical probability is an expert opinion phrase.
• 2:16
  SPEAKER_00: And in states like California, Texas, and Florida, courts define it as more likely than not.
• 2:22
  SPEAKER_00: So in those states, those two are really the same idea in different clothing.
• 2:28
  SPEAKER_00: Reasonable degree of medical certainty is the one that we always used from day one up until about two years ago, and is the third one, and it's the one that Pennsylvania requires.
• 2:39
  SPEAKER_00: In Pennsylvania, more likely than not is not enough.
• 2:43
  SPEAKER_00: And it's actually the riskiest of the three to write.
• 2:47
  SPEAKER_00: So how did I get there?
• 2:49
  SPEAKER_00: I want to walk you through it because the way that I got there is wrong and it's a trap that you can fall into as well.
• 2:54
  SPEAKER_00: It started with California.
• 2:56
  SPEAKER_00: In 2022, California Appeals Court decided Klein versus Zimmer.
• 3:01
  SPEAKER_00: The court said that the defense expert could talk about other possible causes of the injury without meeting the reasonable medical probability standard, while the plaintiff expert still had to meet it.
• 3:11
  SPEAKER_00: And that was lopsided.
• 3:13
  SPEAKER_00: So California changed its evidence code.
• 3:15
  SPEAKER_00: The new section 801.1 took effect in January of 24.
• 3:20
  SPEAKER_00: And it says that expert testimony about alternative causes of medical condition in a civil case has to meet reasonable medical probability too.
• 3:29
  SPEAKER_00: I read that change and I saw it as the direction the law was moving.
• 3:32
  SPEAKER_00: I built my course module around it.
• 3:34
  SPEAKER_00: I updated my entire course.
• 3:36
  SPEAKER_00: I taught a reasonable degree of medical probability.
• 3:38
  SPEAKER_00: I told all my experts.
• 3:39
  SPEAKER_00: I taught that it meant more likely than not, and I taught 51%.
• 3:43
  SPEAKER_00: And separately, an attorney in Florida had recommended probability language to us, the more likely than not language that is.
• 3:50
  SPEAKER_00: Florida courts are comfortable with this reasonable medical probability and more likely than not.
• 3:55
  SPEAKER_00: And so that advice was sound for Florida.
• 3:59
  SPEAKER_00: Here's the problem: California's statute is narrow.
• 4:02
  SPEAKER_00: It covers California, civil cases, and medical causation testimony about alternative causes.
• 4:10
  SPEAKER_00: It is not a national rule, and it says nothing about how a nurse in Pennsylvania should word her opinion.
• 4:18
  SPEAKER_00: I took one state fix and a one-state advice and turned it into a rule for everyone.
• 4:24
  SPEAKER_00: And that's the mistake.
• 4:25
  SPEAKER_00: Now, let me show you why it matters using Pennsylvania as the example where a lot of our cases are at.
• 4:33
  SPEAKER_00: Pennsylvania requires expert opinions to be held to a reasonable degree of medical certainty.
• 4:39
  SPEAKER_00: Back in 1971, in McMahon versus Young, the Pennsylvania Supreme Court said that the expert has to testify not that the condition might have, or even probably did, come from the cause, but that in the expert's professional opinion, it did.
• 4:57
  SPEAKER_00: In 2008, in Griffin versus UPMC Braddock, the Superior Court looked at an expert who framed the causation opinion as roughly 51 to 49%.
• 5:09
  SPEAKER_00: The court said it wasn't enough.
• 5:11
  SPEAKER_00: Think about that.
• 5:13
  SPEAKER_00: The exact number that I was teaching was the number that Pennsylvania court said falls short.
• 5:18
  SPEAKER_00: And in January of 2026, in Commonwealth versus Fitzpatrick, the Pennsylvania Supreme Court kept a forensic pathologist's opinion out because he admitted he held it only to a more likely than not level.
• 5:33
  SPEAKER_00: Not a reasonable degree of certainty.
• 5:35
  SPEAKER_00: Now that was a criminal case, but the court made it clear that the standard applies to expert opinions generally.
• 5:42
  SPEAKER_00: To be fair, Pennsylvania also says there are no magic words.
• 5:47
  SPEAKER_00: In Roland versus Davies in 2020, an expert used to saying more likely than not explained to him that it meant the same thing as reasonable certainty.
• 5:56
  SPEAKER_00: And his opinions were firm.
• 5:57
  SPEAKER_00: The court looked at his whole testimony and they let it in.
• 6:00
  SPEAKER_00: But I don't want you counting on a court to rescue your wording.
• 6:04
  SPEAKER_00: I want your wording to be right the first time.
• 6:07
  SPEAKER_00: So here's what we're going to do now.
• 6:09
  SPEAKER_00: The default is to a reasonable degree of medical certainty or nursing certainty if you're a nurse.
• 6:16
  SPEAKER_00: Certainty does not mean 100%.
• 6:18
  SPEAKER_00: It is a legal phrase, not a scientific one.
• 6:22
  SPEAKER_00: It means you've reached a firm professional opinion, not a guess and not a possibility.
• 6:26
  SPEAKER_00: Some states like California, Texas, and Florida, use reasonable medical probability.
• 6:32
  SPEAKER_00: If the retaining attorney tells you that that's the standard in their state, use theirs.
• 6:38
  SPEAKER_00: Always ask and don't put a number on your opinion.
• 6:43
  SPEAKER_00: No 51%, no better than 50%.
• 6:46
  SPEAKER_00: A number invites opposing counsel to argue about the number instead of your reasoning.
• 6:50
  SPEAKER_00: And one more thing that I got wrong because it's the part that confused even me.
• 6:54
  SPEAKER_00: Certainty is only half of your causation sentence.
• 6:58
  SPEAKER_00: Your report has to do two separate jobs.
• 7:02
  SPEAKER_00: One is how sure you are, the other is what role the breach played, especially when the other things could have caused the harm.
• 7:12
  SPEAKER_00: More likely than not was doing neither job well.
• 7:16
  SPEAKER_00: And that's why I'm giving it its own episode.
• 7:19
  SPEAKER_00: So after this one, listen to the next sidebar.
• 7:22
  SPEAKER_00: Two separate jobs.
• 7:23
  SPEAKER_00: That's where I walk you through exactly what to write.
• 7:26
  SPEAKER_00: Here's what we've changed on our end.
• 7:28
  SPEAKER_00: Our report templates now say certainty.
• 7:31
  SPEAKER_00: Red pen now suggests certainty.
• 7:34
  SPEAKER_00: And it no longer recommends more likely than not or 51%.
• 7:38
  SPEAKER_00: The course has been updated and the old probability module is gone.
• 7:42
  SPEAKER_00: If you wrote reports using probability because I taught it, go back to any open reports and check with the retaining attorney before they're finalized.
• 7:50
  SPEAKER_00: For reports that are already out, talk to the attorney.
• 7:54
  SPEAKER_00: Don't quietly change a report that's already been sent to the attorney.
• 7:58
  SPEAKER_00: I'd rather tell you I got something wrong than that you walk into a deposition with it.
• 8:03
  SPEAKER_00: That's what I ask of you, and it's what I owe you.
• 8:06
  SPEAKER_00: We all make mistakes.
• 8:08
  SPEAKER_00: We need to own those mistakes, fix what we can, and move forward from there.
• 8:12
  SPEAKER_00: Nobody's perfect.
• 8:13
  SPEAKER_00: This is educational information, not legal advice.
• 8:17
  SPEAKER_00: The required level of certainty varies by jurisdiction, so please check with your retaining attorney.
• 8:24
  SPEAKER_00: This episode of Statutes and Steph is closed.
• 8:27
  SPEAKER_00: If it was useful, follow the show so the next one finds you.
• 8:30
  SPEAKER_00: And if you're a clinician who wants to do this work properly, start with the Expert Report Starter Club at NationaleExpertacademy.com.
• 8:38
  SPEAKER_00: I'm Tracy Livro.
• 8:39
  SPEAKER_00: I'll see you all the next episode.