Fundamentals in expertise medicine

Raymond Boniver

Description

Fundamentals in expertise medicine

Informations

• Publié par: RBONIVER
• Publié le: 21 novembre 2016
• Nombre de lectures: 14
• Langue: English

Extrait

B-ENT, 2016,12, Suppl. 26/2, 177-179 Fundamentals in expertise medicine

R. Boniver

Keywords.Assessment of damages; physical integrity; laws in Belgium

Abstract.Fundamentals in expertise medicine.The author describes how a medical expert appointed to assess damages to physical integrity must proceed. The individual is appointed an expert either directly by the Court of Justice, or appointedsapiteurby a colleague in order to give his opinion on a subject in which he is specialized.

Introduction

Whatever the after-effects of damage to an individual’s physical integrity, whether the result of professional risk, an accident at work or other trauma, they can always seek the help of an expert to assess the nature of their incapacitation. In such an event, the individual can either: - choose their own doctor or medical counsellor (as we will refer to them henceforth) who will defend the individual’s interests concerning matters of insurance and eventually, against the expert medical advice requested by the court. Or: - the insurance companies or the relevant court will designate a medical expert to assess the damage incurred by the individual. As a medical consultant in otorhinolaryngology, our opinion will be sought as follow: - designated by a medical expert assapiteuron speciîc matters, such as damage to the senses of hearing and smell, balance problems or aesthetic concerns within the scope of otolaryngology. - or designated by the courts to act as an expert where injuries are related to the ear, nose or throat regions; for example, professional hearing loss or deafness. The medical expert’s approach will be different, depending on the individual case.

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1. The doctor is designated expert by the court

It is becoming more usual for the court to appoint an expert doctor with a degree in medical valuation, a title now recognised by the Belgian National Institute for Health and Disability Insurance (INAMI – RIZIV). In certain cases, however, the court may appeal to experts or key-opinion leaders in speciîc expertise domains. The expert must strictly respect the framework and nature of the missions as deîned by the judge. The granting procedure at the end of the expertise is well-deîned by the law. The court imposes on the expert a time limit for the completion of the expertise report. If the nature of the mission warrants it, this deadline can be extended by the judge. The expert must inform the judge who appointed him and the lawyers of the concerned parties about the following: -the missions as deîned by the judge - the material already available to the expert - the date reserved for the assessment of the damage The lawyers involved must dispatch the information to their respective medical experts if the latter have not been directly contacted by the expert.

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178

If they are already known to the expert, the medical counsels can be contacted to make an appointment for the damage evaluation. The date for clinical evaluation cannot be îxed without the preliminary consent of the medical consultants. The expert generally asks the parties for all medical information in their possession for a îrst reading of their perspectives, prior to the clinical evaluation. The expert must summon the individual by use of registered mail. During the îrst meeting, the expert listens to the doctors and legal advisors of the parties concerned and in their presence, questions the patient. The expert may perform the clinical evaluation either at the îrst meeting or at a future meeting, at a date agreed to by all parties. If it is thought that the expert needs the help of asapiteurto analyse certain aspects of the damage outside his îeld of competence, all parties must agree to the appointment of this eventualsapiteur. Fees should be sent directly to the more diligent of both parties. The expert then compiles a preliminary report that is sent to the judge, lawyers and doctors of the parties concerned. If requested by the parties or the judge, a second meeting may be planned to discuss the report. If such a meeting is not deemed necessary by the parties, the expert allows all concerned to send him their comments within a îxed period of time. The expert then prepares a înal report, taking into account all of the comments he received from the parties and adding his own remarks. The report is sent by registered mail to the judge and the lawyers, and by normal post or even by email if all agree, to the parties’ consultants. Where the court is concerned, mail must be sent by registered letter and by normal post. Attached to the report, the expert will propose the fees to be charged, which will depend on the time they have devoted to the damage assessments and the technical exams completed by them. The expert will ask the court to provide their statutory approval to the amount so that they can send an invoice to all parties prior to a verdict being reached. In some cases, it will be prudent to ask the court for a down payment on the fees prior to starting the evaluation.

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R. Boniver

Finally, the expert’s report must always înish with the following sentence: “I swear to have fulîlled my mission in honour and conscience, with exactitude and probity.” Whether the damage incurred by the suppliant was due to an accident at work or to some catastrophe, one should always take the previous condition prior to the incident into account in order to relate the damage claimed to the cause of the damage. However: - in case of a workplace accident, the Court of Cassation tells us consistently that “as long as the traumatism resulting from the accident reactivates the victim’s preexisting pathological condition, the îxed standard character of the legal compensation system makes it necessary to consider the victim’s inability to work in its entirety without taking into account his previous unhealthy condition as the accident was at least a partial [cause] of his 1 disablement”. - in the case where professional illness, predispositions and previous conditions have given rise to the creation of abundant case laws and doctrines. When the level of disablement is due to a combination of the victim’s unhealthy condition and the effects of an illness, in accordance with the constant guidance of the Court of Cassation , the principle of the irrelevancy of the previous state of health creates the need – as with matters concerning workplace accidents – for considering the victim’s inability to work in its entirety as long as the professional illness is at least partly to blame for the disablement. Problems surrounding the previous condition arise particularly where the level of permanent disablement in the case of successive or concomitant accidents and/or professional illness 2 are concerned. The consultant ENT can also be appointed an expert for other matters such as increases in family allowances and levels of handicap but this follows from the present report.

2.

The ENT doctor acting assapiteur

The wordsapiteurrefers to an astute advisor to the doctor who requests such a consultant. In many cases, the doctor entrusted with valuation in the case of multiple traumas is often a surgeon or has a degree in medical evaluation. This doctor may request complementary advice from otorhinolaryngologists who are particularly

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Expertise medicine

competent in their area of expertise in order to measure the damage to a person’s physical integrity in areas such as hearing, balance and smell. The ENT expert will read the recommendations concerning the valuation as presented by the Belgian 3,4,5 E.N.T. Royal Society. He/she must perform the necessary tests with the utmost rigour and must take care to use objective tests wherever possible in order to clearly identify the symptomatology of the requesters (demandeurs). When the examination is complete, particularly in cases of vestibular examination, the expert must be particularly careful to follow the criteria previously deîned by the Belgian Society and to keep to the Society’s guidelines concerning normality. During the examinations, the expert will describe in clear terms the damage or lack of damage detected, not forgetting that the doctor who has sent the requester (demandeur)him is not an to ENT specialist and needs to the able to interpret the results given to him. He will avoid stating a percentage of disablement or injury, unless requested to do so, as this might upset the values that the expert designated by the court arrives at. He will not forget that scales provide only information about the level of disablement and are only obligatory in special cases. The BOBI – OBSI (Belgium Ofîcial Book of Invalidity) is to be used for matters concerning the after- effects of military accidents or valuations related to the Belgian Ministry for Social Affairs in order to determine the level of disablement. He can rather refer to theGuide Barème Européen (Anthemis editions) and within the framework of professional illnesses, refer to the scale of the 6 Belgian Funds for Occupational Diseases.

3.

Complementary readings

Boniver R, Norre ME, Claussen C, Freyss G, Georgopoulos G, Guidetti G, Hadj-Djilani A, Hinchcliffe R, Krejcova H, Magnusson M, et al. Medico-légal in O.R.L.Acta Otorhinolaryngol Belg.1988;42(6):722-771.

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179

Boniver R. La perte de l’audition et ses répercussions tant physiques qu’économiques. Revue Belge du Dommage Corporel et de Médecine LégaleConsilio manuque). 2013,40(1):3- 17. Boniver R. Surdité et incapacité.Revue Belge du Dommage Corporel et de Médecine Légale (Consilio Manuque).2014,41(4):177-188. Feront P.Vade-mecum de l’évaluation médico- légale. Bibliothèque de Droit Social. De Boeck et Larcier, Belgium; 2000. Lucas P, Joseph G.L’expertise médicale: Clés de lecture pour le juriste. Anthemis Editeur, Brussels, Belgium; 2016. Lurquin P.Traité de l’expertise en toutes matières. Bruylant Editeur, Brussels, Belgium; 1987.

References

1. Van Gossum L, Simar N, Strongylos M.Les th accidents du travail. 8 Brussels, 2013.Ed.. Larcier, rde 2. Delooz P, Kreit D. Les maladies professionnelles. 3 Ed. Larcier, Brussels, 2015. 2. Royal Belgian Society for Ear, Nose, Throat, Head and Neck Surgery. Towards B-ENT Guidelins. Part one. B-ENT.2005;Suppl 1. 3. Royal Belgian Society for Ear, Nose, Throat, Head and Neck Surgery. Towards B-ENT Guidelins. Part two. B-ENT.2007 ;Suppl 7. 4. Société Belge d’Oto-Rhino-Laryngologie et de Chirurgie cervico-faciale et groupement belge des spécialistes Oto-Rhino-Laryngologie et de Chirurgie cervico- faciale. Expertise médicale en Oto-Rhino-Laryngologie. Recommandations. Acta Otorhinolaryngol Belg. 1986 ;40,(6),907-915. 5. Confédération européenne d’experts en évaluation et réparation du dommage corporel; Lucas P, Hugues-Béjui H, Borobia C, Cannavò G, Amer JG, Guy J, Sauca C Stehman M, Streck W, Viera DN.Guide Barème Européen d’Evaluation Médicale des Atteintes à l’intégrité physique et psychique. Anthemis, Louvain-La-Neuve, Belgium, 2010.

Raymond Boniver, M.D., Ph.D. Professeur invité honoraire Université de Liège Rue de Bruxelles, 21 4800 Verviers-Belgium E-mail: [e-mail]

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