Quite often, after you have reviewed the medical records for a case, the attorney will ask you to prepare a written report of your opinion. This request is quite common in the medical-legal industry.

Some physicians may not feel comfortable drafting a written expert medical opinion, which will be used as a legal tool. This is especially true if you have never done it.

There is really no reason to feel this way. Drafting a medical legal report is not that different than drafting a consultation letter after seeing a patient referred to you by a colleague. Start summarizing the history, then list the objective evidence, then conclude with your opinion, same way as you usually prepare your "Assessment and Plan".

There are, however, few differences:

1. A practical one is that you can bill by the hour when you prepare your medical legal report.
2. A more relevant one is that you must remember that your report must answer two major questions:
   1. Did the care provided fall below the accepted standards of care, or represented a deviation from the accepted standards of care?
   2. Did the deviation from the standards of care result in any significant damages to the patient?

The Standards of Care

The standard of care is not what you would have done or what would have been done at your site of practice but is the level and type of care that a reasonably competent and skilled health care professional, with a similar background and in the same medical community, would have provided under the circumstances that led to the alleged malpractice.

Describing the care provided to a patient as "poor", "less than adequate", "adequate", "perhaps reasonable" however does not define clearly your opinion from a legal standpoint. Instead, you should specify whether the care in question did, or did not fall below the accepted standards of care, or whether it did, or didn't represent a deviation from accepted standards of care.

Similarly, expressing your opinion using "possibly", "perhaps", "maybe", etc, lacks specificity, and is not appropriate in the legal field. Instead, you may want to state your opinion "to a reasonable degree of medical certainty", or "to a degree of more likely than not" or "to 51% or more probability". Even when you feel very strongly about your opinion, however, avoid using "to a point of 100% certainty", "always" or "never". You would lose credibility, as we all know there is no such a thing as 100% certainty in medicine (It would also be very easy for the opponent to pull a number of case reports dis-proving your "100% certainty").

As an example, an opinion that states that the delay in making the proper diagnosis probably represented care that fell below accepted standards may be of little significance. On the other hand, your opinion will be very clear, from a legal point of view, if you state that the delay in diagnosis more likely than not did (or didn't) represent care falling below the accepted standards of care.

Causation

There is "causation" when the deviation from the standards of care has resulted in any significant damages to the patient. For instance, a gastroenterologist may fall below the standards of care if they do not diagnose a large mass of the cecum. However, if the same patient is already scheduled to undergo a right hemicolectomy because of a tumor of the hepatic flexure, the failure to diagnose the cecal mass has not resulted in any damage, because the patient is still receiving the appropriate treatment (i.e. the right hemicolectomy). If a deviation from standards has resulted in damages (e.g. the patient with the tumor of the cecum does not receive any treatment and develops metastatic disease), the report should comment on the link between the care provided and the patient's subsequent damages. This too must be expressed in terms of "more likely the not", or "to a reasonable degree of medical probability".

If the physician has any questions about the terminology to use in their report, they should not hesitate to call the attorney and ask for guidance.

Generally, the attorney will ask to review the report before it is finalized. This is usually to verify that the physician has used the appropriate terminology, and that sentences that may be confusing are eliminated or clarified. This is a very common practice in the medical legal field. While the physician should welcome any assistance from a lawyer when it comes to legal terminology, they should not allow the attorney to alter the substance of the report.

Ultimately, when it comes to producing an Expert Witness report, it does not matter if the physician is working for the defendant or the plaintiff. The physician must only express opinions that are in line with their education, training, and experience.

Outline and format guide for preparation of an Expert Opinion Report

Some items for the physician to keep in mind as they create their report:

• Use professional stationary. If the physician is an employee, they may not want to use the letterhead of their institution.
• The physician should address the report to the attorney they are working with, or "To whom it may concern".
• List the documents reviewed and upon which the opinion is based. (such as, "l have reviewed the hospital records of John Smith (date of birth), late of New York City, New York County, NY. These records were issued by the New York State Hospital and cover the period of June 1, 2022 to July 1, 2022").
• Either at the beginning or at the end of your report include a sentence such as: "My opinions are based upon reasonable medical certainty. I reserve the right to amend and/or supplement my report/opinions as new/additional information are made available to me."
• Provide a brief summary of the case in an organized manner - for instance, list the facts in chronological order.
• Discuss the relevant issues in the case with regard to the appropriate and accepted standards of care, expected of a similar specialist under the same or like circumstances.
• Discuss any deviation from the accepted standards of care and explain how these deviations were the cause of the patient's problem and/or aggravation of an existing condition, or if they created an increased risk for future problems. If the care provided was good, discuss that as well, and explain how undesired or unfortunate clinical outcomes may still occur even when patients received proper care.
• Discuss the medical damages resulting from the deviations from the standards of care, and any future damages which could be considered to result from those acts ("The departures from, or the failure to conform to good and accepted medical practice were the cause of the injuries to the patient and the death of the patient...")
• Identify which parties (physicians, surgeons, nurses, employees, hospitals) deviated from the accepted standards of care, what each did improperly, and the damage(s) their acts caused, if any.
• Discuss any other aspect of the case as you see fit.

The sources for this information include members of the expert witness community.