WHAT LAWYERS LOOK FOR IN A MEDICAL LEGAL REPORT

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1 Seminar written and presented by Angela Price-Stephens at the Trial Lawyers Association of B.C. Medical Malpractice Conference, Maui, HI January 2014 WHAT LAWYERS LOOK FOR IN A MEDICAL LEGAL REPORT Angela Price-Stephens, Murphy Battista LLP Introduction The outcome of a claim for personal injury is largely dependent on supportive medical expert opinions rather than those witnesses who speak to the facts of what happened. A factual witness will likely give the evidence as to how an incident occurred. It is the medical evidence that will determine what injury, if any, was sustained, together with the condition and prognosis for the plaintiff. The plaintiff has the burden of demonstrating causation i.e. that the incident/accident or event caused the injury or a particular constellation of medical problems. In order for the plaintiff to succeed, it is not enough to demonstrate that the incident / accident may have caused the problems. However, proof at the level of certainty is not required. It is sufficient that the plaintiff demonstrate that the incident/ accident either: probably caused the injury likely caused the injury more likely than not caused the injury Similarly these terms will not meet the threshold: may have caused the injury possibly caused the injury unlikely caused the injury The plaintiff may also seek to demonstrate that she is experiencing ongoing problems related to incident/accident, and that these issues are likely to continue into the future. The medical expert can play a key role in providing clarification to the court on matters related to the plaintiff s pre-existing, current and future condition.

2 Why Use Experts? An expert is sometimes necessary to assist the trier of fact (the judge or jury). The expert assists the court by offering an opinion in areas of expertise that is beyond the knowledge and experience of the trier of fact. It is generally accepted that expert medical evidence is required in cases involving standards of medical care or personal injury 1. Essentially, for a report to be admissible it needs to meet the criteria of both necessity and reliability. This means that the nature of the opinion must be deemed necessary in order for the trier of fact to understand and weigh the evidence. The opinion set out in the report needs to be based on reliable principles and methods of research and these principles and methods need to have been reliably applied to the facts of the case at bar. The expert may also act as consultant in an advisory capacity to the lawyer identifying the anticipated problems in establishing liability and assisting with identifying all aspects of care which may go to quantum, irrespective of whether a report is ever produced. Whether the expert produces a report or not the true value of the expert lies in providing a realistic, objective assessment of the issues and not bending too far to accommodate what the expert anticipates the lawyer wants to hear. The Medical Legal Report Medical Legal Reports (MLR) are reports authored by a treating physician or other professional as opposed to an Independent Medical Evaluation (IME) which is authored by an independent expert who is specifically NOT treating the plaintiff. For the purposes of this paper I will use the term MLR to refer to both independent and treating experts. An expert s opinion may be rejected when met with contrary expert opinion from either a treating expert, or an expert who has been retained to conduct an IME. It is for the judge or jury to decide whose evidence it prefers. The courts have acknowledged that treating experts generally have much more experience in treating the plaintiff before and after the injury, may be more sensitive to cultural issues, and may have the advantage of having contact with family members, all of which may increase their 1 R. v. Mohan (1994) SCR 9

3 credibility with the court 2. Conversely, the courts have recognized that treating experts often have long standing relationships with patients and this increases the risk that they take on an advocacy role 3, and they may tend to rely heavily on self-reporting by the patient 4. In light of these competing factors, how well the MLR is written can have a substantial impact on the court when determining which expert opinion it prefers. What makes a good MLR? 1. Conforms to the Rules of Admissibility In order for the MLR to be admitted as evidence, it must meet the requirements of the Civil Rules in the jurisdiction where the case is being heard. The rules vary between different provinces, and it is important to confirm the specific requirements. Generally, the Civil Rules require the following: Name: The report must include the name of the person responsible for the report. This requirement is aimed at group reporting, or where one person carries out part of the evaluation and a second person carries out the balance resulting in different components of the report being authored by different individuals. Multiple authors and/ or evaluators should be avoided where ever possible as it may become unnecessarily complicated as to whose opinion is whose. It may be that all authors of the report (not just the first named or senior author) may be called to testify. Qualifications: The report must include the qualifications of the expert. The use of letter headed paper alone is insufficient 5 and neither is a Curriculum Vitae (CV) alone. It is best to provide the report on letterhead, to include a statement of the expert s qualifications within the body of the report, and also attach a CV as an appendix. The statement of qualifications should 2 Chiu (Guardian ad litem of) v. Chiu (1999) Carswell BC 2028 (SC) 3 Lehtonen v. Marasco (2008) Carswell BC 2839 (SC) 4 Thiessen v. Kover (2008) Carsewell BC 1445 (SC) 5 Reid v Belcaen 2003 BCSC 1450 para 11

4 include the nature of practice, recognized specialist and sub-specialist qualifications and length of experience in the area of practice relevant to the opinion. The qualifications and experience of the expert is likely one of the most persuasive variables considered by the court when determining whose opinion in favours. Facts and Assumptions: The MLR needs to include a list of Facts and Assumptions upon which the opinion is based. This criterion gives rise to the most challenges. A skilled expert will list all relevant facts and assumptions relied upon in giving their opinion, while avoiding the inclusion of excessive or irrelevant information. The expert should not attempt to give a final determination of the facts themselves 6. It is not the role of the expert to convince the court to accept or reject the facts and assumptions. Rather, the facts and assumptions must be clearly stated in the report, and it is left to the court to assess whether all the facts and assumptions have been (a) proved and (b) carry weight in supporting the opinion. Duty to Court: The report must include a statement confirming the expert s duty to the court to act as an unbiased expert and not an advocate for any party. The expert is expected to not only formally state this duty in their report, but to also comply with the duty of objectivity and impartiality throughout the body of the report and during any court testimony. If an expert is found to be an advocate for one side or the other, the report will be given little weight or may be inadmissible 7. Documents Reviewed: The report needs to include a list of documents reviewed, including all documents referred to within the body of the report. 2. Includes Patient History The expert needs to take a complete history as it relates to the injury(s) claimed, including preexisting conditions. In preparing the MLR, the expert should not spend time on irrelevant conditions, but just note them for completeness and move on. GPs have a particularly tough time in producing MLRs due to the many sources of information that they have available to them, which is often a mixture of hearsay, specialist opinions, etc. Where an expert has failed to take into account the complete medical history and clarify the source of the information, the weight of the expert s report is undermined. On the other hand, 6 Yewdale v. ICBC (1995), 3 BCLR 7 Shobridge v. Thomas et al. (1999) Carswell BC 1747

5 obtaining a complete history does not mean that the expert is required to delve into the minutia of the plaintiff s life. Taking an overly zealous history taking is inappropriate, as articulated by Weatherill J. in the recent BC Court decision (Thibeault v. MacGregor) 8 : [95] Counsel provided detailed written submissions on the issue of the Vondette Report s admissibility. I agree generally with the submissions of plaintiff s counsel. Dr. Vondette s report is prolix in the extreme. Dr. Vondette s review of the plaintiff s background was beyond thorough and comprehensive - it reported the minutia of the plaintiff s social, family, psychological and medical history. It is important to note that even if the expert becomes aware of a plaintiff s history at trial (long after taking the history and preparing the MLR), the expert can still maintain credibility, as noted in the Thibeault decision 9 : [64] Dr. Reeves was a delightful, knowledgeable, candid and helpful expert witness. I have no difficulty accepting her opinions and recommendations, which did not change when she was made aware of the plaintiff s prior family history, medical issues and drug use. 3. Grounded in Thorough Assessment and Good Notes The expert should undertake an appropriately thorough assessment (where appropriate) including obtaining a detailed and accurate history. The notes and clinical records will be ordered for review by the lawyers at some point in the litigation process. The expert who takes a complete and accurate history and then compiles this information into clear and organized notes gains credibility as an objective and impartial expert. Similarly for IME experts, their notes need to be complete, balanced and open minded, not only taking note of complaints from the plaintiff that support their claim but relevant comments that may not be so supportive. Irrespective of whether a physical examination is appropriate or not in making an assessment of the plaintiff s condition is essential that the medical expert consider the full range of possible diagnoses and indicate why the conclusion reached is the most reasonable option. This strategy will encourage the trier of fact to trust the expert s opinion, which will ultimately make their opinion more persuasive. 8 Thibeault v. MacGregor 2013 BCSC 808 (CanLII) [Thibeault] 9 Thibeault, supra.

6 4. The Expert Has Read Everything When provided with information about the patient from the referral source, it is important that the expert has actually read it all. An expert who fails to read all of the information provided may miss an important detail, which will undermine the credibility of their report and opinion. The expert should review all documents again if required to testify in court. It is incumbent upon the expert to ensure they have a full understanding of the facts available to them. In the Smith v. Moshrefzadeh 10 decision, the trial judge rejected the orthopedic surgeon s expert report and testimony, partly because of his failure to carefully review the documents: Dr. Wahl clearly had not reviewed Ms. Smith s medical records as carefully as the other expert witnesses and as I mentioned earlier his report was predicated on a misconception as to the timing of the onset of Ms. Smith s symptoms. Given the significant concessions he made in cross-examination and the Court s impression that he displayed a somewhat compromised objectivity in preparing his report, I consider it unsafe to rely on his opinion. 5. Stays Within Scope of Expertise It is important that the expert not express opinions outside of his area of expertise and/or experience. Common mistakes include: a. physicians opining outside their medical discipline and specialty; b. therapists opining on diagnosis or prognosis; and c. experts trying to take on the role of lawyer or using legal terms In the Thibeault case, the trial judge was highly critical of an expert Physiatrist, who claimed an overly wide scope of expertise: [100] Dr. Vondette pontificated throughout his testimony regarding the virtues of his specialty and his experience within it. In addition to the field of physiatry, he apparently views himself as having bountiful knowledge in other specialties in which he has no formal training, including psychiatry, psychology gynecology, physiotherapy, family medicine, social work and occupational therapy. He 10 Smith v. Moshrefzadeh 2012 BCSC 1458 (CanLII)

7 testified that his expertise is such that he tells physiotherapists exactly what I want done. MLRs can be undermined by more subtle issues related to scope of practice, such as outlined in the decision in Smith v. Moshresfzadeh 11 where the trial judge stated the following about the opinion of an orthopedic surgeon: Each of the doctors persuasively discounted Dr. Wahl s opinion that the degeneration of Ms. Smith s cervical spine shown on her x-rays is the cause of her current symptoms. While Dr. Wahl is no doubt a well-qualified orthopaedic surgeon, his practice is focused on the surgical management, not the medical management, of the spine. (para. 62) If in doubt, the expert may wish to express his opinion but state that he would defer to a specialist (and state the specialty deferred to). For example, a physiatrist may feel compelled to comment on what may appear to be obvious signs of depression and/or anxiety in the patient he is assessing. He may state the patient appears depressed but defer to a psychiatrist and recommend such an assessment take place. 6. Clear Report Format A well-structured, clear, concise MLR that is free of errors facilitates structured thinking and assists the lay reader s comprehension. An appropriately formatted report is ultimately more professional and thus more persuasive. Choose a black font that is simple and at least 12 point size, use 1.5 line spacing when possible, and avoid long paragraphs of text. Include report section headings and do not be afraid to some white space between sections of the report. The report should avoid repetition of information. The Courts have been clear that the author should avoid excessive use of bold font and underlining of the body of the report. If the author regards a particular fact or issue of great importance, simply state it to be, rather than using other methods to bring attention to particular words or phrases. In the case of Warkentin v. Riggs 12, the trial judge expressed frustration with an expert s report format as follows: 11 Smith v. Moshrefzadeh 2012 BCSC 1458 (CanLII) 12 Warkentin v. Riggs 2010 BCSC 1706 (CanLII)

8 He uses bold font to highlight words and phrases which benefit the plaintiff s claim and support his diagnosis. This is apparent in his review of Ms. Warkentin s history and medical reports. That which is contrary to the plaintiff s claim or does not support his diagnosis is either omitted or presented in non-bolded font. This emphasis in support of the plaintiff s claim and the exclusion of contrary matters is advocacy. Attached as appendix A and B are two examples of report formats. Appendix A is a more generic format. Appendix B is geared more towards family doctors who generally have a tougher time producing concise reports due to the potentially wide variety of sources of information, the duration of time treating the patient and the range of differing issues presented to him by the patient. As with all precedents these are to be treated as an aid to the preparation of a concise well-written report, to be modified where appropriate. I will note however that some of the best experts who produce consistently excellent reports use the same format on each occasion. For particularly lengthy reports where there may be a complex medical history and/or more than one alleged negligently caused injury (such as an MVA client later suffering alleged negligence at the hands of their treating doctor) an executive summary set out early on the document may make a potentially overwhelming report more manageable for the lay trier of fact. In any event a well written, logical conclusion is essential to the report. 7. Includes Full Disclosure An expert s report should disclose all meetings and assessments of the patient, or else the expert risks appearing impartial or selective in what information was disclosed to the court. It is also important for the expert to fully disclose their own conflicts, ownership, interests, etc. to maintain objectivity and credibility. In the case of Rizzolo v. Brett 13, an expert who conducted a Functional Capacity Evaluation was harshly criticized by the trial judge for failing to disclose his proprietary interest in one of the tools (FAB) he used in his assessment: [98] Initially, I was impressed by Mr. McNeil s apparent sincerity and competence and his enthusiasm for motion capture as an objective addition to what is otherwise a subjective evaluation of an individual s functional capacity. 13 Rizzolo v. Brett (2009) BCSC 732 (CanLII)

9 [102] Mr. McNeil was compelled to reveal at the end of his cross-examination, that he has a proprietary interest in, and is the President and sole director of Biosyn Systems. Biosyn s website provides Mr. McNeil s address and advertises its applications in the areas of rehabilitation, industrial, and sports medicine. It makes the following promise: Whether performing repeat tests over the course of a rehabilitation program or performing a single capacity evaluation, FAB will make your testing more accurate and reliable, will score all of your tests, and produce a report for you faster. [105] I consider Mr. McNeil s failure to disclose the fact that he is the principal of Biosyn and that he was an inventor of FAB to represent a shocking lack of candour. As he has testified in the courts on numerous occasions, he is well aware that the duty of an expert is to assist the court with an independent and objective opinion on a particular issue. To withhold such relevant information misleads the court and, as I have no choice but to reject all of his written and verbal evidence, constitutes a substantial waste of time. It is impossible to parse out Mr. McNeil s evidence as a qualified expert from that as an undisclosed salesman for Biosyn. Full disclosure also includes a duty to the court to disclose changes in the expert s opinion or report that have been influenced by outside factors, including those that may undermine objectivity. In the case of Lower v. Stasiuk 14, a Psychiatrist prepared a report for a litigant in a family law matter, but then edited the original draft on significant matters that impacted on the outcome of the case and the expert was later named in the appeal. In the original case, the trial judge stated the following about the expert s evidence (para. 27): I do not accept the evidence of Dr. H* He is truly an advocate and appears to be prepared to do or say whatever is necessary to assist his client, even if it means 14 Lower v. Stasiuk 2013 BCCA 389 (CanLII)

10 attempting to destroy the reputation of Dr. C* and even if it means allowing the defendant s mother to edit his letter of support for the defendant. 8. Provides Well-reasoned Recommendations One purpose of a MLR is to guide the lawyer in ensuring that the client receives appropriate and timely care. This is essential to ensure that the client takes all reasonable steps to mitigate their loss which they are obliged to do (quite apart from the genuine desire to make as good a recovery as possible). While skilled and proactive plaintiff counsel will take the initiative and find the best experts to assist with the case, it is the expert who must drive the treatment plan with recommendations. Caution: recommendations may become a double edged sword. For example, if an expert were to clearly and unequivocally recommend surgery and the plaintiff (for whatever reason) elects not to proceed with surgery there is a risk to the client that she may be found not to have mitigated her loss. It is essential therefore those words are chosen carefully. In this example, ask yourself: is it more reasonable to recommend a consultation with a surgeon than it is to recommend surgery? Often further testing and imaging is required before such a recommendation can be made. For a surgeon making such a recommendation, he should choose his words even more carefully. No surgery is without risk. For a patient who has already suffered injury (maybe at the hands of a physician) it is a big step to consider such invasive treatment which may or may not be successful. There is never a guarantee of success. Accordingly I encourage many such physicians to couch such intrusive recommendations in terms of Ms. X may wish to consider surgery on her shoulder which would be expected to have reasonable prospects of resolving a majority of her symptoms but does carry the risk of [list them]. There may also be a small risk of worsening the pain. For an expert (especially an occupational therapist) is in important to include only medically justified recommendations and reasonable costs in their report. With respect to recommendations for future care, medically justified is the standard, as opposed to medically necessary (which is a higher standard) 15 and it is essential that the expert understand this distinction. While it is important to recommend items that place the plaintiff back in the position he would have been had the injury not occurred, the weight given to the expert s report will be undermined by straying from medically justified recommendations, and including unnecessary or overpriced items. An overly generous approach is particularly harmful to the expert s credibility when the lawyer who hired the expert states, as in Rizzolo: 15 Brennan v. Singh (1999) BCJ No 520 (SC (QL)

11 [112] Mr. K* readily conceded that numerous items are either unnecessary, such as a cane, bath seat, and assistance with household moving; or are overpriced such home management assistance at $70 an hour. 9. Chooses Words Wisely Loaded Words: It is important that the expert avoid the use of loaded or charged words. For example, statements such as he claims to have pain versus complained of pain versus had pain leave very different impressions. Commenting on Motivation: Comments by an expert regarding lack of effort and motivation by the plaintiff may be interpreted as malingering, even if that was not the intent of the expert. There can be many causes for lack of motivation and lack of effort, including depression, anxiety, pain (or a host of other variables). No matter what the underlying cause an expert s comment about lack of effort or motivation almost certainly will be painted as malingering by defence. Entitlement: It is essential that the expert avoid commenting on entitlement issues as opposed to clinical issues. Engaging in commentary on entitlement issues puts the expert at risk of being considered an advocate which will undermine the weight of the opinion and report. For example, use of phrases such as the plaintiff deserves (or doesn t deserve) or should receive (or should not receive) are not acceptable. It is also inappropriate for experts to comment on the credibility of a witness (positive or negative) or provide editorial comments 16. It is the role of the trier of fact to determine the credibility of the witnesses, including the plaintiff. In the Thibeault decision, the expert Physiatrist was criticized for overstepping the role of the impartial expert as follows: He opines on matters that have no relevance to the plaintiff s claim in this proceeding: He overreaches into the areas reserved for the trier of fact. He makes remarks that go solely to the plaintiff s credibility. His report in many places is argument in the guise of opinion (para. 95). Medical Terminology: Medical experts will likely need to include medical terminology and concepts in their reports. Make sure to provide definitions of medical terms and explain the medical concepts in the report. The goal of the report is to assist the trier of fact (judge or jury) who lack medical expertise. Some of the best reports are those that use the correct term and 16 Campbell v. Sveinungsen (2008) Carswell BC 619

12 put in brackets a layman s term. Alternatively, use a key at the end of the document. Either approach can greatly assist the lawyer in persuading a court that the medical and scientific content of the evidence can be understood by a jury (when defending an application by defence to strike the jury). Write it so your grandmother can understand it 10. Avoids Raising the Bar In cases where the expert is providing an opinion on medical standards of care, it is inappropriate for the expert to attempt to raise the bar or suggest a standard beyond that which exists. If the expert views their role as trying to improve the standards of medical care or espouses an unrealistic standard of perfection, the expert may be viewed as an advocate by the court. Where a patient s care involves multiple physicians and/or medical care over a long period of time it can be helpful for the expert to acknowledge when the standard has been met and not just when the standard was not met. This will make the evolving story/facts clearer for the trier of fact, assist them to focus on the real issues and will assist the expert gain credibility as an objective expert. 11. Open Communication with Instructing Lawyer Open communication mean that the expert is willing and available to speak with the lawyer who has requested the report. A ten minute telephone call prior to writing the report can make the difference between producing a report which covers all issues required for the litigation in the correct terminology, versus producing a poor report (the draft of which will also become discloseable during the course of the litigation). A poor draft is a breeding ground for damaging questions for defence counsel to pepper the expert with in the witness box. Summary: The most important considerations by the court are the objectivity and knowledge of the expert. An expert who takes an even handed approach to the plaintiff and to the evidence will enhance their credibility and long term reputation. Sympathy and empathy for an injured individual is a valuable quality but no competent plaintiff lawyer wants to retain and be guided

13 by an overly pro-plaintiff expert. No competent lawyer wants to receive an obviously proplaintiff report. The advocacy must be left to the lawyer. WHAT LAWYERS LOOK FOR IN A MEDICAL LEGAL REPORT Angela Price-Stephens, Murphy Battista LLP APPENDIX A GENERAL OUTLINE FOR MLR Provide report on letter headed paper. Addressed to lawyer requesting report (not the court) Identify the client name, date of birth and date of injury

14 Dear Ms. Price-Stephens Thank you for asking me to see Mr. X to conduct a medical legal assessment. I hereby certify that I am aware of the duty referred to in Rule 11-2 of the BC Supreme Court Civil Rules and that my report was made in conformity with that duty, and that, if called on to give oral or written testimony, I will give that testimony in conformity with that duty. I provide this expert opinion in the field of [state the specialty] The opinions in this report are based on my assessment of Mr. X on [date] and the records provided to me by your office. My history and assessment findings are set in in Appendix A. The list of records provided by your office is set out at appendix B. [list everything sent; if certain records were deemed not relevant indicate this to be the case in the appendix] My notes from the review of the clinical records provided to me by your office are set out in Appendix C. You have asked me to provide an opinion on the following: [list questions in letter of instruction] Your letter of instruction to me is attached at Appendix D. I am the sole author of this report and responsible for the opinions expressed. I reserve the right to update or change my opinion in the event of further information becoming available to me. QUALIFICATIONS AND EXPERTISE [set out in detail] I attach a C.V for your reference. FACTS AND ASSUMPTIONS [Set these out in brief numbered paragraphs these will include pre-existing conditions which may be relevant, injuries outlined in clinical records, the course of treatment including imaging etc]. OPINION

15 Based on my assessment of Mr. X and the specific facts and assumptions listed it is my opinion that he was injured in the [MVA/surgery/fall etc.] on [date]. Those injuries include: [set out the injuries in numbered paragraphs] STANDARD OF CARE CAUSATION RECOMMENDATIONS [set out the recommendations in numbered paragraphs] Yours faithfully, [don t forget your invoice!] WHAT LAWYERS LOOK FOR IN A MEDICAL LEGAL REPORT Angela Price-Stephens, Murphy Battista LLP APPENDIX B GENERAL FAMILY DOCTOR OUTLINE FOR MLR Provide report on letter headed paper. Addressed to lawyer requesting report (not the court) Identify the client name, date of birth and date of injury

16 Dear Ms. Price-Stephens Thank you for asking me to see Mr. X to conduct a medical legal assessment. I hereby certify that I am aware of the duty referred to in Rule 11-2 of the BC Supreme Court Civil Rules and that my report was made in conformity with that duty, and that, if called on to give oral or written testimony, I will give that testimony in conformity with that duty. I provide this expert opinion in the field of [state the specialty] The opinions in this report are based on my consultations with Mr. X since he first became by patient on [date]. I also asked Mr. X to attend my office on [date] for an assessment in preparation for me preparing this report. I have also considered the records provided to me by your office. Those records are listed at Appendix A. You have asked me to provide an opinion on the following: [list questions in letter of instruction] Your letter of instruction to me is attached at Appendix B. I am the sole author of this report and responsible for the opinions expressed. I reserve the right to update or change my opinion in the event of further information becoming available to me. QUALIFICATIONS AND EXPERTISE [set out in detail] I attach a C.V for your reference. FACTS AND ASSUMPTIONS [Set these out in brief numbered paragraphs these may include pre-existing conditions which may be relevant, the course of treatment including imaging etc. It is not necessary to list every appointment as these are set out in your records. Often the two most important reasons a family doctor is required to provide a report and/or give evidence is 1. To confirm when the plaintiff first made complaint of injury and what the nature of those complaints were and 2. To confirm that the plaintiff has no pre-existing injuries which could reasonably be expected to interfere with his/her ability to be independent and/or work. Bear this in mind when preparing your report. Set this out clearly and you are much less likely to be called to give evidence at trial. OPINION

17 Based on my knowledge of Mr. X and my recent assessment of my patient and the specific facts and assumptions listed it is my opinion that he was injured in the [MVA/surgery/fall etc] on [date]. Those injuries include: [set out the injuries in numbered paragraphs] STANDARD OF CARE [if requested] CAUSATION [if requested] RECOMMENDATIONS [set out the recommendations in numbered paragraphs. If you wish to defer to specialists or be guided by the specialist involved state this to be the case.] Yours faithfully, [don t forget your invoice!]

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