An expert report means its time for a rebuttal opinion

When to Request a Rebuttal Opinion — and What to Avoid in Your Own Reports

Dec 24, 2018

The opposing side’s expert has testified — but you feel their report has arguable conclusions or is otherwise unreliable. 

Weak points are common in medical expert reports. Knowing how to spot them, and working with your own expert to counter them, can make a big difference in a case — and can help you spot them in your own reports before they have a chance to sway opinion against you.

Could Bias Have Tainted the Expert’s Report?

Medical specialists can maintain tight social relationships with other physicians in the same region of the country, calling into question the objectivity of their reports if called upon to potentially critique a colleague. Who knows who? Who trained with who? Who refers patients to whom? Who do they golf with regularly?

That’s why WMA prefers to use specialists in major centres if the claimant lives in a small town. With medical malpractice WMA prefers to go out-of-province for the opinion.

Has the Expert Misunderstood the meaning of a particular term?

For example: was the term “objective finding” used appropriately, when it should have been “subjective finding”.  Similarly “aggravation” vs “exacerbation” are commonly confused. These clues may betray an expert’s failure to fully understand a situation.

Has the Expert Strayed Outside Their Area of Expertise?

For example, being an expert in spinal injuries doesn’t automatically make one an expert in psychological matters. Searching for instances where an expert has left their own realm of expertise and veered into some other area is a prime opportunity to have another, more qualified expert, weigh in.

Is the Expert Inconsistent?

Experts often have a trail of previous opinions in written decisions, and mining this information can be fruitful. If you can find an instance of them providing a different opinion in a similar previous case, you can call into question their reliability as a court expert.

Is There Room for Your Client to be in that “Small Percentage”?

An expert’s report may mention that some particular symptom or hardship is experienced only by a small number of people with the broader condition — or that it’s “unlikely” that they would experience what is claimed. That may be so, but statistics don’t apply to individuals — they describe probabilities in large populations. They may not determine the individual circumstances of your client.

Does the Expert Rely on Illegitimate Information?

Medicine changes, but sometimes an expert doesn’t change with it. An outdated or unproven theory may find its way into an expert report, and when that happens you may well need a rebuttal opinion to point that out.

Stay Professional — And Work with the Right Expert of Your Own

Above all, keep it professional, and attack the report, the reasoning, and inaccurate portrayal of facts rather than the opposing expert themselves. While your rebuttal should directly challenge the expert’s report where relevant, you will also want to establish where the report is correct, and where both sides can agree. This can help narrow things down to the core of a disagreement over an issue — and will help establish your own expert’s credentials. Judges appear to appreciate that!

Do you need a hand finding that perfect expert? At Western Medical Assessments, we maintain a network of qualified specialists ready to help evaluate medical claims. Our Medical Director Dr. Roger Hodkinson is always available for a quick no-obligation chat at 780.433.1191. Or, you can Get started with our Resources for Lawyers — right here.

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