Guest Blog Post by Dr. Noah Kaufman
When an attorney contacts me for the first time, I usually try to request a blind review up front. Sometimes, unknowing attorneys will let the cat out of the bag in their initial phone call or email, but an expert always has more credibility when they can honestly say, “I reviewed this matter blind, that is, I did not know which side I was reviewing for when reaching my prima facie opinion.” This approach, while aspirational—and often impossible—is important for several reasons:
- It enforces impartiality.
- It removes potential biases such as compensation bias
- It allows for a stronger de novo review and opinion
Although not a standard term, I call bias created by financial incentives “compensation bias.” Sometimes referred to as Adversarial Allegiance in forensic psychology research, experts often (unintentionally) align more with the side that retained them.
This is part of the reason why it is completely valid to ask your expert if they have turned down any recent matters for non-supportive reasons. After all, wouldn’t you want an expert that was truly aligned based on an impartial review? Some of the best attorneys I know approach experts without divulging their position before a review and ask for blind reviews. Although this is often not possible for the defense, where an engagement letter is the norm, many of the attorneys I work with in Denver will bring me matters that are still in candor for a prima facie opinion of where they stand.
If a blind review is possible, credibility is much higher if an expert can genuinely report not knowing which side they were reviewing for upon initial review of the matter. I try to accomplish this with new attorneys that reach out to me for a review by stating my preference up front. I use some fairly standard and simple scripting such as:
“Hi John, thanks for your interest and I am happy to do a review, if possible, before we discuss the matter or which side you represent, can you just shoot over the medical records so I can take a quick, relatively blinded first glance?”
Obviously, this is not always possible, and when it is not, I try to “forget” the matter before reviewing it. I typically have several matters to review at any given time, and I will save the review materials and wait a couple days or a week until I have more of a beginner’s mind.
To wit, I recently was deposed for a personal injury matter that I reviewed blindly. The attorney reached out, I used my standard approach, and it was a relatively straightforward matter. After my review, the attorney asked me to explain the injuries and form an opinion about pain and suffering. The incident involved a 30-year-old woman who was badly crushed by a garbage truck, breaking 34 bones and collapsing her left lung, which slowly filled with blood. She suffered greatly before she died and never made it to the hospital, dying in the EMS ambulance. In my deposition, I was asked if I had ever reviewed another pain and suffering matter, and if I had ever opined that no suffering had occurred. I was able to reply that not only was I involved in a contemporaneous matter for the defense, in which my opinion was that there was negligible pain and suffering (the death was quite sudden in that case with immediate loss of consciousness from electrocution), I responded that I had reviewed both matters blinded. I could tell the deposing attorney was visibly frustrated with this credibility enhancing answer.
For these reasons, as attorneys and experts, we are both served well by doing our best to keep reviews blind. That being said, one of my oldest friends in the business who helped me get my start, Lisa Leasure in Denver, has been a malpractice defense attorney for over 25 years. Obviously, I know which side she is on when I am asked to review a case. But as she will tell you, I have turned her down on more than one occasion when I did not feel standard of care was met. Ms. Leasure speaks about this in an amazing testimonial she gave about working together, which I have posted on my website. Being non-supportive is critically important to the process. Although it yields far fewer billable hours for an expert, great attorneys want to know where they stand, and the strength—or weakness—of their case. Many a frivolous matter has avoided litigation because of an ethical expert witness generating a non-supportive opinion. On the contrary, a lot of time and money has been wasted by unethical “career” experts who only opine for one side and will take any case. These “hired guns” are really the worst part about the process since many attorneys will move forward aggressively with a matter if it is supported by an expert.
This is also why being a busy, in-demand expert is important. Young experts who haven’t had many cases, or don’t have a good number of active cases at any one time may be compelled by compensation bias to yield a supportive opinion, especially in a grey-zone matter.
So, when possible, strive to perform a blind review, or, if you are meeting for the first time, ask up front to review the matter blindly. Occasionally, repeat attorney-clients of mine do both plaintiff and defense work. These attorneys and I have an understanding, and all matters begin with minimal discussion. I am fortunate to work with so many incredible attorneys like John Sadler in Colorado and others from all over the country. Unfortunately, most attorneys who approach me—I would say over 75%—immediately let the cat out of the bag with their position: “Hi Dr. Kaufman, I am defending an ER doc…” or “Hi Dr. K., we are suing such-and-such regional medical center for negligence…”
The last thing I would like to add about doing “blind” reviews (or as blind as possible) is that they help me to be more investigative, from scratch. Instead of unconsciously searching for data points to support a conclusion (confirmation bias), I feel more open-minded to consider the matter from above, without judgment, and often without knowing the outcome. It may not be as critical for truly black and white matters, but grey zone matters, which I have dedicated a full chapter to in my upcoming book, mandate an open mind.
Medical malpractice issues always boil down to reasonableness of care prospectively. How would a cohort of similarly trained physicians, in a similar work environment treat a patient without knowing the outcome?
Final take away: whether you are an experienced expert, a new expert, or an attorney looking for an impartial opinion, it is best practice for experts to approach these complex matters with a clean slate and a fresh mind—ready to opine on facts with as little bias as possible. If this is accomplished through a blind approach or partially blind approach, that is optimal, but not always possible. Either way, an impartial approach, cognizant of potential biases, is critical to an effective and ethical witness testimony.
Noah Kaufman, MD, is a Denver-based emergency physician and medical expert witness. Through Kaufman Medical Group, he helps attorneys and courts navigate complex medical issues with clarity and integrity. Visit www.kaufmanmedicalgroup.com to learn more.
