QnA
QnA: We invited a legal journalist to ask us questions about our activities and David Marshall, our Managing Director, kindly answered
Q: Why is this company offering a new service?
A:This is a new way of looking at an old problem. When a client first appears in an attorney’s office with a possible medical malpractice claim, the attorney’s dilemma is whether to spend some of the firm's money on a medical report. The evidence presented by a client may not stand up to scrutiny by a medical expert. An attorney could spend a lot of capital and come up empty. Sirleaf Pte Ltd offers attorneys a medical evaluation service on a contingent fee basis. Submit the medical documents as they stand to our expert panel. There is no need to prepare a request for the report or spend time putting the documents in order. Send the documents as they are. Should our panel experts find essential documents missing from the file, we will ask for them. When the report is delivered, we will clearly state whether there is compelling evidence of malpractice. If not, we will say so and the attorney has lost nothing. But if the panel finds a good case of malpractice, the attorney has a winnable case to pursue with no cash outlay.
Do your experts go to court?
A:No. Sirleaf Pte does not supply expert witnesses. Its only function is to appraise the medical evidence to determine whether there is a prima facie case of medical malpractice or negligence. After submitting its report and answering any questions the attorney may have, it relies on the expertise of the attorney to steer the case to a successful conclusion.
Aren’t there already legal consultant nurses offering a similar service in the USA?
A:Many firms of attorneys who specialise in personal injury cases employ professional nurses in a paralegal capacity or employ nurses as subcontractors. They review the medical evidence in all cases and eliminate those where there appears to be no remedy. Because of their knowledge, they are also well-equipped to prepare the remaining cases for submission to those physicians who are qualified to act as expert witnesses. In their own right, nurses can offer good quality appraisals where the allegations of malpractice and medical negligence relate directly to the acts and omissions of nurses.Unfortunately, no matter how well qualified they are, courts do not accept nurses as experts to give evidence on the quality of professional decisions taken by physicians. The group of physicians empanelled by Sirleaf covers all the major medical specialties. Every member has sufficient knowledge and experience in their own discipline to qualify as an expert in his or her own country or state. Further, it is an international group, aware of best practice standards in multiple countries. It brings a depth of comparative understanding to the assessment of every case. Self-evidently, this service is offered to attorneys in all countries, not simply in the US.
But don’t you think that nurses are perfectly capable of judging the actions of a physician or a specialist?
A:There may well be cases where, at a general level, a nursing professional could offer an opinion. However, as an example, suppose a case comes in on the quality of a neurological investigation carried out by a general physician. A nurse would not be able to say what level of knowledge a general physician should have. Nurses do not know which current journals a generalist should read to be aware of the most recent clinical studies. Detailed knowledge and experience in the field of neurology would be required to prepare a report on the adequacy of the investigations made. In my view, a nurse consultant has limited competence in the management of legal cases and failing to honestly recognize these limits does not do justice to either side.
Nurses are cheaper to employ than the top physicians!
A:Firms of attorneys specializing in medical malpractice or negligence do employ nurses on a full- or part-time basis to triage the cases coming into the firm. This adds to the firm's overheads on a more substantial and continuing basis. The nurses working as subcontractors are paid a fee for each report. We now introduce a third option which avoids any outlay of pay or fees. In this recession, when every cent may be an important saving, we offer expert medical reports on a contingent fee basis.If the case is settled because of the egregious behavior of the parties involved and without the need for the further reports, the attorney has the settlement with no real outlay other than billable hours. This is excellent news for the market place. Attorneys can now choose: continue to pay paralegal nurses or receive reports on a contingency from top medical specialists on our panel. Competition is always good in a free market.
Do you think it’s ethical for a medical review group to work on a contingency basis?
A:This is a slightly surprising question. There are no legal or ethical barriers to doctors and lawyers working on a contingency basis. From a physician’s point of view, there is no qualitative ethical difference between an expert who works for a fee payable immediately and one who works on a contingent fee. Both have a profit motive in wanting to see the case proceed to a conclusion. But there is a quantitative difference. If paid experts want the high hourly rates earned by giving evidence in court, they have an incentive to encourage the continuation of the case. But these experts want to be paid in any event. They are not prepared to back their judgement and the quality of the evidence they may give in court on a contingent fee. In a sense, they do not want to be accountable if they are proved wrong. A medical expert who works on a contingent fee only gets paid if his or her judgment is proved correct. This actually gives the medical expert on a contingency a direct incentive to give realistic appraisals from the outset.Overall, there is no real difference between an attorney who backs his or her judgment in taking on a client and a medical expert who advises on medical issues to determine whether there is a prima facie case of malpractice or medical negligence. Neither will receive payment for their time if the case fails. More importantly, if one of our panel offers a report to an attorney knowing or believing that it to be false in some material particular, this will become obvious fairly rapidly and expose both the company and the medical expert to action to recover all costs, expenses, fees and other disbursements paid out by the attorney in reliance on the report, plus general damages for all other loss and damage sustained by both attorney and client. As a company, we prefer to avoid litigation. Further, the individuals who make up the panel of experts will find their own professional status compromised if they are exposed as shills to sell litigation where there is no substantive cause of action. Thus, we all have a direct interest in maintaining the highest professional standards when assessing the medical evidence and writing the reports.
Are you sure attorneys have no ethical difficulties?
A:There is one ethical issue for attorneys. They owe a professional duty to their clients to provide a trustworthy and reliable service. For that purpose, systems have been put in place and are now working reasonably well. Attorneys should not switch from a proven to an unproven system without evidence that a new service is at least as good as, if not better than, the old. In reality, this is not a problem. Our company operates on a contingent fee. It does not cost attorneys a cent to run our service in parallel to their current systems. If our service proves its value, attorneys then satisfy their ethical duty when they transfer to our service full-time.
Do you think that physicians can be objective in their assessment of other physicians?
A:If the case is complex and cannot be settled, the attorney will have to refer the medical evidence to local physicians qualified to act as expert witnesses. There is always a risk that the "professionals" may band together to give each other the benefit of the doubt. Except that, with an expert report from our panel on his or her desk as a point of reference, it would be more difficult any local physician acting as an expert to "stretch the limits of credulity". Everyone has reputations at stake in this process. Going back to the question of nurses with legal qualifications, attorneys would be paying a subcontractor $150 or more per hour for advice on when to refer the case to a local expert witness. In my experience it should be the person who provides the initial appraisal who sees the case through to the conclusion. Sadly, the service we offer across national boundaries does not provide follow through to the trial because our panel members are not registered as expert witnesses in all countries and states. They would not be eligible to give testimony without significant effort and cost, usually proving uneconomic. This means the company would be in no better position than a paralegal nurse except we make no upfront charge for our services and our experts might see more in a set of medical records than nurses.
Do you have any final thoughts about the role of nurses?
A:A system relying on nurses is great every time they say there may be a case because the attorney then asks a physician. The problem comes with all the cases a nurse says do not have merit. The attorney makes all apologies and turns down the case because it is not economical to have an expert physician review all the rejected files. In Europe, the drive to do justice to the client is satisfied by getting the best opinion available at the outset. That is what we now offer to US attorneys. Our panel is made up of top physicians. They will review all cases on a contingency basis.
In the USA, some 95% of potential cases never go to trial! What are the implications?
A:As it stands, the attorney pays for these losing cases to be screened at the outset. This may be just to a nurse working as a paralegal, or to a nurse and a medical expert. With our service, every consultation that produces a negative result is free of charge. Even if one of the world's top neurosurgeons reviews a medical file on a neurosurgery case, there is no charge to the attorney or the client if the report is negative. So, from an attorney's point of view, the 5% of winning cases we produce make more profit because the attorney does not pay for the consults on the other 95% of files. If our experts actually find that 10% of the files referred are winners, then more injured patients will benefit and the attorneys will earn more profit. Seems like a win-win situation all around to me.
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