51% vs 49%
It only takes one grain to tip the scale
As a treating Physician, Spine Surgeon, and a Medical Expert, I am often asked to offer analysis on certain medical situations.
I write letters, and sign forms regarding return to work, work restrictions, temporary disabled parking permits, the need for additional medications, and therapy. I am often asked to justify my reason for the letter.
For people who are injured in accidents and falls, I am asked to analyze the cause of their injuries, the need for treatments, and the permanent nature of their injuries. From a legal perspective, I am giving expert opinion.
When I am asked to make the Expert analysis, these conclusions are used by our legal system to determine settlement, or compensation for the pain, disability, and treatment costs associated the injury.
Causation analysis can change based on information not provided at the time of the initial analysis.
Since the Expert analysis is often challenged by both sides of the dispute, the analysis must be based on the specific factors of the situation. That means considering the information evident at the time of the analysis. That information typically includes:
1. Mechanism for how the injury occurred
2. Timing of the presentation of the complaints
3. Utilization of evidence based medical treatment protocols
4. Identification of measurable findings on testing
5. Correlation of the subjective complaints to the objective findings
6. Reviewing prior medical history for similar complaints
7. Reviewing the prior medical history to rule out medical co morbidity causes of the complaints
8. Evaluating the treatment protocols as compared to the community standard.
In the end, the conclusion of the analysis also must meet the standard of “more likely than not“. The other terms often used is “within a reasonable degree of medical probability“. In the end, it means there is more than a 51% chance that the conclusion is correct. If it is 49%, then the analysis will conclude differently.
Fortunately, when I make my Expert analysis, the conclusion probability is usually a much greater percentage that 51%. Still, most folks need to understand that opinions by Medical Experts are held to this standard. As the analysis probability comes closer to 51%, disagreement of the analysis is typical. Yet, as the scale above shows, one more grain can be the difference.
For many treating Physicians, and Surgeons, this definition of “within a reasonable degree of medical probability” causes much angst when making these statements. To give an example, as a treating spine surgeon, I am most concerned about any possibility of a poor surgical outcome. A 20% chance of a bad outcome is a definite concern. Yet, when offering Expert opinions based on the “more likely than not” standard , the possibility of the poor outcome does not pass the threshold of 51%. The opinion will be a “poor outcome is not likely”, and sometimes, the opinion will also be “the poor outcome will be unlikely”. To say “with a reasonable degree of medical probability, the outcome will be acceptable” is also a proper statement.
For my patients, if you are involved in a legal matter, please provide all your information so I can make the proper analysis. As your treating Physician, I would like to present all the relevant information so I can also make analysis that will be considered Expert Opinion. Depending on if it is 51% or 49%, I will need to make a different statement.
It is similar to an election. 51% becomes the more likely conclusion. 51% is the “winning” conclusion.
As a surgeon, I will always do what is in the patient’s best clinical interest. When I offer expert analysis about legal disputes such as causation, and future care, etc., it will be based on the situation and evidence based medical science. The analysis will be made based on what is more likely. Sometimes, the analysis may not capture the nuanced nature of the problem. That is because treating Physicians look at situations from a perspective of what is possible ( even a 10% chance of a bad surgical outcome is a very real concern), not just what is likely. The treating Physician perspective differs from the standard set by the legal system regarding expert opinion.
- Kahn CA, Cisneros V, Lotfipour S, Imani G, Chakravarthy B. Distracted Driving, A Major Preventable Cause of Motor Vehicle Collisions: "Just Hang Up and Drive". West J Emerg Med. 2015 Dec;16(7):1033-6. PubMed PMID: 26759649