What a Pain Management Expert Witness Reviews in a Malpractice or Workers’ Comp Case

Which cases call for a pain management expert

Interventional pain medicine is its own specialty, with its own training, board certification and procedures. A case usually needs a pain management expert when the care at issue is a spine or pain procedure, or the long-term treatment of chronic pain. Common examples:

• Epidural steroid injections in the neck, mid-back or low back
• Radiofrequency ablation, facet joint injections and medial branch blocks
• Sacroiliac joint and other image-guided joint injections
• Ongoing chronic pain management, including medication decisions
• Workers’ compensation disputes over whether interventional treatment is necessary and related to the work injury

The questions the expert answers

Standard of care. Did the physician act as a reasonably prudent pain physician would have under similar circumstances? This covers the decision to do the procedure, how it was done, and how problems were recognized and handled.

Causation. If there was a departure, did it cause the injury? Many poor outcomes in spine care come from the underlying condition, or from a known complication that can occur even when everything is done properly. A bad result is not, by itself, evidence of negligence.

Damages and future care. What interventional treatment is the patient reasonably likely to need, how often, and for how long?

What records the expert needs

• Clinic notes from before the procedure, including the history, exam and treatment already tried
• Imaging reports and, where possible, the actual MRI or CT images
• The signed consent form and any documentation of the consent discussion
• The procedure note, medication and dose records, and sedation and nursing records
• Saved fluoroscopy or ultrasound images from the procedure
• Medication lists, especially blood thinners and when they were stopped and restarted
• Post-procedure notes, phone messages, emergency visits and hospital records
• Prior and subsequent treating records, to establish the patient’s baseline

What the expert looks for in the file

1. Was the procedure indicated? Do the symptoms, exam and imaging line up, and was conservative care tried first when appropriate?
2. Was consent informed? Were the material risks and the alternatives discussed and documented?
3. Were safety checks done? Blood thinners, infection, allergies and relevant medical conditions should be addressed before the needle goes in.
4. Was the technique sound? The level, approach, image guidance, use of contrast and choice of medication should be documented and consistent with one another.
5. Were problems recognized and acted on? New weakness, numbness, severe pain or fever after a spine procedure calls for prompt evaluation. The timeline matters.
6. Does the record support causation? The timing of symptoms, the imaging findings and the alternative explanations all have to fit.

Florida rules attorneys should know

Florida limits who can give standard-of-care testimony in a malpractice case. When the defendant is a specialist, the expert must specialize in the same specialty and must have spent the three years before the incident in active clinical practice, teaching or clinical research in that specialty (section 766.102, Florida Statutes). A practicing, board-certified interventional pain physician fits that requirement for interventional pain cases.

Florida also requires a presuit investigation. Before filing, the claimant must have a verified written medical expert opinion that there are reasonable grounds for the claim, and the defense must have one to deny it (section 766.203). Other states have their own rules, so confirm the requirements where the case is pending.

How workers’ compensation reviews differ

In a workers’ compensation matter the focus shifts from fault to medical questions about the claim itself:

• Is the proposed or past treatment medically necessary?
• Is the condition related to the workplace injury, or to a pre-existing or degenerative problem? Florida asks whether the work accident is the major contributing cause.
• Has the worker reached maximum medical improvement?
• What permanent impairment and work restrictions apply?
• What future interventional care is reasonable?

When to bring the expert in

Early. A short records review before suit, or before a claim is denied, costs far less than discovering a weakness after deposition. It also helps counsel decide which other specialists the case needs, such as neurosurgery, neuroradiology or neurology.

What to send with a first inquiry

• The names of all parties and treating providers, for a conflict check
• The jurisdiction, the type of case and which side you represent
• Key deadlines, including presuit or expert disclosure dates
• A one-paragraph summary of the care at issue and the injury claimed

Sources

• Section 766.102, Florida Statutes: Medical negligence; standards of recovery; expert witness
• Section 766.203, Florida Statutes: Presuit investigation of medical negligence claims