Saturday, April 13, 2019

Managing Cynicism: Teaching Law Students about Dueling Doctors in Workers’ Compensation

It does not take a law student embarked on my workers’ compensation course long to realize that, in many of the litigated cases we read, the opinions of the doctors involved are diametrically opposed. And opposed despite the underlying complexity of the medical issue under dispute—it is nearly self-evident in many of these cases that it would be impossible to determine whether disability was, for example, work-related “to a reasonable degree of medical certainty.” The second and third year law students making up my class have been exposed to talismanic expositions of the adversarial system in which they will work—“not a perfect system but the best we have,” & etc. (We’d have to ask Leibniz if it is the best of all possible worlds). But come on. Every case? Completely opposed opinions? I try to reassure them: this is not true in every case; by definition, we are reading litigated cases. Difficult cases. The problem is that so many of the litigated cases my class reads reveal absurdly opposed opinions at which all but the most sophisticated of repeat players might blush.

This, to me, is the Achilles heel of the system. We resort to expert opinion to answer what is essentially unanswerable: in many cases we cannot (in reality) disentangle work-related from non-work-related causes. We can’t do it in tort law either – we use terms like “but for” and “proximate” causation as if we know what the terms mean. As a student of David Hume, I know better. When there are multiple causes we resort to the “substantial factor” test and pretend we can say that a cause has made an “important” (“more than a mere scintilla”?) contribution to a harm. We also have incredible difficulty explaining the origins of pain. In an odd way it is actually comforting to think that unexplained pain is either the product of employee faking and malingering or is always real but denied unreasonably by the unfeeling agents of profit maximization.

In close cases involving the exercise of judgment, in connection with essentially unanswerable questions, who will make the bottom-line decision of compensability? Students understand the legislative urge (when viewed from 40,000 feet) to break free of the dueling-doctor-dyad in an attempt to achieve the holy grail of “neutrality.” It is somewhat harder to explain why the structures we pretend are neutral often aren’t. The IME, QME, Medical Panel, EMA often look from the outside like parties with allegiances (financial or otherwise), particularly from the perspective of an injured worker. And if the “neutral” opinion of that expert is binding, or may be disregarded only if there is “clear and convincing” evidence to the contrary, it is hard to explain why the selection of that individual (the de facto decision maker) must not only be actually free from impropriety but must also be free from the appearance of impropriety viewed from the perspective of a truly disinterested third-party. This is an ethical concept lawyers and judges know well, but which seems conveniently de-emphasized in “modern times” when assessing conflicts of interest in many professions (workers’ compensation is hardly alone in this regard).  

So what is a professor of workers’ compensation to say about these matters? Three thoughts come to mind at the moment. First, any time entitlement to a public benefit is being determined one must be clear-eyed about who is in reality making decisions and apply the same conflicts rules upon that person that we would impose upon any public official. Naïve? So was the notion of due process in 1215—I’m glad no one gave up on that ideal in the 13th century because it might be too hard to achieve (whether we can keep it is another question). Second, we must work hard to maintain a balanced perspective about what interests cheat. All interests cheat—but some cheating has greater impact on the system as a whole, and that is what should be focused upon. And, by the way, most people don’t cheat. If I didn’t believe that, how could I believe in the ideal of the rule of law? Because I do believe in the ideal of the rule of law, I like to think I’m a pretty good choice for a law professor. Third, we may at some point have to (again) admit that a benefits system resting upon slender reeds of causation will not work in the long run. Depending on what happens with health care in the next couple of years, the stakes of the causation determination may diminish. Thinking along these lines when considering the fatiguing spectacle of dueling doctors seems much better than descending into cynicism.    

Michael C. Duff

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