I had a wonderful opportunity last week to participate in an educational program produced by the National Worker’s Compensation Defense Network (NWCDN). The pandemic has resulted in far fewer public gatherings. Like most other organizations, the NWCDN took their annual conference virtual.
Virtual really has some great advantages. Of course, the cost is less (no ballrooms to rent, no audiovisual equipment to obtain, etc.). Of course, the attendees save significant costs also and they do not have to travel to some exotic location. Certainly, some locations are more exotic than others. I have delivered lectures in more than a few budget-rate hotels over the years. I have also traveled to a few locations literally so remote they had never heard of an airport. Some organizations actually seek out such oases.
One of the great attributes of in-person attendance is the ability to loiter after a presentation, around the podium, in the hallway, or even in a restaurant to discuss topics that were raised in the main session. I have engaged in literally hundreds of fascinating conversations instigated by such interactions. That, unfortunately, it’s a bit difficult virtually.
So at the very end of the presumption panel discussion last Thursday, the moderator tossed me a question regarding how judges might approach the differing opinions of medical experts regarding the evolving science surrounding COVID-19/SARS-CoV-2. For whatever reason, the software enabling our presence elected not to allow me to respond. It was likely just as well, because as Mr. Fish then pointed out there were only 20 seconds remaining in the allotted time.
The fact is that COVID is novel (remember when they were calling it the Novel Coronavirus?). It has presented us with so many various challenges. We have learned about getting sick from someone who has no symptoms. We have learned about getting sick from touching a surface that no one else has touched for days? We have learned that one may be exposed to an ill person and suffer debilitating symptomatology while someone else may be identically exposed and not even contract the virus.
So yes, there are various considerations, perspectives, and challenges with COVID-19. But at the end of the day, are those challenges any different from the medical causation of a knee injury, low back pain, or a rotator cuff tear?
How will judges deal with the fact that medicine is evolving regarding this disease? The same way they have always dealt with the same challenge and other conditions. COVID is not special in that medical science is evolving. COVID is not special in the symptoms vary from patient to patient. COVID is not special in that it presents challenges for the treater and those who must strive to understand the treatment. COVID is widespread, uncertain, and pernicious. Thus, it presents risks for large populations.
What is true is that more is being learned every day about COVID, perhaps daily. That is likewise true for a variety of maladies. I can remember a variety of tests and treatments that have been touted over the years in orthopedics. Some went on to prove quite effective, while others not so much. Some innovative cures/treatments actually ended up being discredited by later research and by the results seen in patient populations. Remember when patients with joint replacements were kept on bed rest?
That circles back to the Battle cry of some to “follow the science,“ “follow the science.” Would that be the science of today, yesterday, next week, or can we appreciate that it may even be different next month or year? I remember when the world's top scientists warned us of the coming Ice Age and the perils of global cooling. I remember last spring when some of the world's best scientists advised us not to wear masks as a protection against Covid. I don't fault them for changing their minds, or blame science for evolving. I merely suggest that it may be appropriate at times for even science to change its mind. Perhaps the only constant is change?
It seems possible that science does not possess all answers at a given moment in time. It is possible that medicine will evolve in its general consensus on a subject (remember the doctor that invented lobotomies won the Nobel Peace Prize as a result). Even if a treatment is sound, it is also possible that one human body will react differently to an insult or invasion than some other human body or mind. Similarly, different bodies similarly react differently to treatments or modalities. It turns out that people can have differences from each other.
How will judges sort through the uncertainties, and the persistent evolution of medicine with COVID? They’ll do it now just as judges always have. They will rely upon the parties to bring evidence. Judges will assess the credibility of that evidence-based on each expert's ability to support and explain her or his logic. They will look to the scientists to both bring conclusions and opinions, but also to explain their conclusions in a method that is digestible by us non-scientists. Judges will look to the expert's process, conclusions, and credibility.
Judges will follow the evidence, as developed and presented by the parties; through research, direct examination, explanation, and the critical test of cross-examination. they will hear both sides develop and frame their respective evidence and argument, and do their best as non-scientists to digest their conclusions, processes, and explanations. Judges will then apply the law, and render their best decisions. They may make mistakes, just as the scientists might.
As regards fact-finding and legal holdings, COVID is really not that different from any other human malady. Science is not perfect, neither is the law. But, the legal process is effective. Those who prepare and try workers' compensation cases are exceptional attorneys. Through their preparation and presentation of evidence, cross-examination, and argument, they will hone the issues and facilitate the process of judicial decisions.
Aren’t you glad I didn’t try to squeeze that into the 20 seconds remaining last Thursday?
