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Sidebar - Two Separate Jobs · Statutes & Stethoscopes | Trial Lessons for Medical Injury Lawyers

• 0:03
  SPEAKER_00: This is statute.
• 0:06
  SPEAKER_00: I'm Tracy Libertori.
• 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: In the last sidebar, I told you I taught something wrong.
• 0:29
  SPEAKER_00: Today I want to fix the thing that got me confused in the first place because I'd bet it's confusing you two.
• 0:35
  SPEAKER_00: Your causation opinion has two separate jobs.
• 0:38
  SPEAKER_00: Two different questions answered by two different phrases.
• 0:43
  SPEAKER_00: When I taught, more likely than not, I was asking one phrase to do both jobs and it just can't.
• 0:49
  SPEAKER_00: Job one is your confidence.
• 0:52
  SPEAKER_00: How sure are you?
• 0:54
  SPEAKER_00: That's where to a reasonable degree of nursing certainty or medical certainty, if you're a physician, goes.
• 1:00
  SPEAKER_00: It tells the court this is a firm professional opinion, not a guess, and not a possibility.
• 1:06
  SPEAKER_00: Job two is the role the breach played.
• 1:09
  SPEAKER_00: How did the failure connect to the harm?
• 1:12
  SPEAKER_00: Was it the whole story or one real part of it?
• 1:15
  SPEAKER_00: That's where caused or was a substantial factor in causing goes.
• 1:20
  SPEAKER_00: Two questions: how sure am I, and what did the breach do?
• 1:25
  SPEAKER_00: Keep them in separate boxes in your head because they sit in different parts of the sentence.
• 1:30
  SPEAKER_00: Now, here's why more likely than not felt right to so many of us.
• 1:35
  SPEAKER_00: In nursing home cases, there's always, almost always, another cause that's in the picture: heart failure, diabetes, dementia, age.
• 1:44
  SPEAKER_00: When you write more likely than not, it feels like you're admitting all of that honestly.
• 1:48
  SPEAKER_00: You're saying, I am not claiming that this is the only explanation.
• 1:52
  SPEAKER_00: I'm saying that this one issue, more likely than not, is the main cause of X, Y, and Z thing.
• 1:57
  SPEAKER_00: But read the phrase again.
• 1:59
  SPEAKER_00: More likely than not only answers job one.
• 2:03
  SPEAKER_00: It's a confidence level and a low one.
• 2:06
  SPEAKER_00: It says, I'm a little more sure than unsure.
• 2:09
  SPEAKER_00: It says nothing about the other causes.
• 2:12
  SPEAKER_00: It doesn't tell anyone what role the breach played.
• 2:14
  SPEAKER_00: And in Pennsylvania, that confidence level falls short.
• 2:18
  SPEAKER_00: So it's doing job one badly and job two not at all.
• 2:24
  SPEAKER_00: The phrase that actually handles other causes is substantial factor.
• 2:28
  SPEAKER_00: That's the job two phrase.
• 2:30
  SPEAKER_00: It says the breach played a real meaningful part in the harm without claiming it was the only thing going on.
• 2:38
  SPEAKER_00: Pennsylvania's jury instruction uses the words factual cause, meaning a real factor, even if it wasn't the only one.
• 2:47
  SPEAKER_00: If the attorney wants you to mirror that, use it.
• 2:50
  SPEAKER_00: Either way, you get to be honest about a complicated patient and still give a firm opinion.
• 2:56
  SPEAKER_00: So here's the thing I want you to hear clearly.
• 2:59
  SPEAKER_00: You don't choose between certainty and substantial factor.
• 3:02
  SPEAKER_00: You use both, one for each job.
• 3:06
  SPEAKER_00: Here's the sentence.
• 3:18
  SPEAKER_00: Because.
• 3:19
  SPEAKER_00: And then add the mechanism.
• 3:20
  SPEAKER_00: Unrelief pressure over the sacrum for shifts at a time, documented the turning and repositioning records, whatever it was.
• 3:27
  SPEAKER_00: Look at what each piece is doing to a reasonable degree of nursing certainty.
• 3:33
  SPEAKER_00: Is job one was a substantial factor in causing?
• 3:37
  SPEAKER_00: Is job two?
• 3:39
  SPEAKER_00: And because is what makes a jury believe both.
• 3:44
  SPEAKER_00: Then you add one more step where there are other causes.
• 3:48
  SPEAKER_00: Name them.
• 3:49
  SPEAKER_00: Her diabetes and her poor nutrition made her skin more fragile.
• 3:53
  SPEAKER_00: Then explain why they don't change your opinion.
• 3:55
  SPEAKER_00: A fragile patient needs more turning, not less.
• 3:58
  SPEAKER_00: And the facility knew her risk from her admission assessment.
• 4:02
  SPEAKER_00: You're not hiding the other causes, you're dealing with them head on.
• 4:05
  SPEAKER_00: Now what does a wrong version look like?
• 4:08
  SPEAKER_00: Here are three that I see.
• 4:10
  SPEAKER_00: It is more likely than not the failure to reposition caused the injury.
• 4:13
  SPEAKER_00: Job one is weak, job two says caused, which can sound like the only cause, and there's no mechanism.
• 4:20
  SPEAKER_00: The failure to reposition may have contributed to the injury.
• 4:23
  SPEAKER_00: There's no job one at all, and job two is a possibility of a small role.
• 4:29
  SPEAKER_00: That's not really an option either.
• 4:31
  SPEAKER_00: To a reasonable degree of nursing certainty, the injury was consistent with inadequate repositioning.
• 4:37
  SPEAKER_00: You got job one right, but consistent with is a soft phrase.
• 4:41
  SPEAKER_00: It describes something that could be true, but job two never gets done.
• 4:45
  SPEAKER_00: What if you're honestly not sure?
• 4:47
  SPEAKER_00: Then don't write the opinion yet.
• 4:49
  SPEAKER_00: Certainty is not a word you add to make a weak opinion sound strong.
• 4:53
  SPEAKER_00: If you can't get there, narrow the opinion to what you can support.
• 4:57
  SPEAKER_00: Ask for the records that you're missing.
• 4:59
  SPEAKER_00: And tell the attorney before you write anything on paper, not after.
• 5:03
  SPEAKER_00: A narrower opinion that you can defend beats a broad one that falls apart in deposition.
• 5:08
  SPEAKER_00: And before you write anything, ask the retaining attorney two questions.
• 5:14
  SPEAKER_00: First, what confidence phrase does your jurisdiction expect?
• 5:18
  SPEAKER_00: Certainty or probability?
• 5:20
  SPEAKER_00: Second, what causation language does your jurisdiction use?
• 5:24
  SPEAKER_00: Substantial factor, factual cause, or something else, like more likely than not.
• 5:29
  SPEAKER_00: Those two answers fill in job one and job two.
• 5:32
  SPEAKER_00: If the attorney says use probability, use probability.
• 5:36
  SPEAKER_00: If they say factual cause, use factual cause.
• 5:39
  SPEAKER_00: Your sentence structure stays the same.
• 5:41
  SPEAKER_00: One more thing.
• 5:43
  SPEAKER_00: You don't need to attach the confidence phrase to every sentence in the report.
• 5:47
  SPEAKER_00: Put it on your causation opinions and your standard of care opinions only, where it counts.
• 5:53
  SPEAKER_00: Everywhere else, write plainly and say what happened.
• 5:56
  SPEAKER_00: So here's your takeaway.
• 5:58
  SPEAKER_00: Two jobs, two phrases.
• 6:00
  SPEAKER_00: Certainty says how sure you are.
• 6:02
  SPEAKER_00: Substantial factor says that the breach did because proves it.
• 6:06
  SPEAKER_00: And more likely than not, comes out of your report unless the retaining attorney specifically asks for it.
• 6:12
  SPEAKER_00: Again, this is educational information, not legal advice.
• 6:15
  SPEAKER_00: Causation standards and the required level of certainty vary by jurisdiction, so check with the retaining attorney.
• 6:22
  SPEAKER_00: This episode of Statutes and Stephenscopes.
• 6:25
  SPEAKER_00: If it was useful, follow the show so the next one finds you.
• 6:28
  SPEAKER_00: And if you're a clinician who wants to do this work properly, start with the Expert Report Starter Kit at National Expert Academy.com.
• 6:36
  SPEAKER_00: I'm Tracy with Richard.
• 6:37
  SPEAKER_00: I'll see you on the next episode.