Copyright © 2019 Larson Law
Personal Injury Health Care
September 20, 2016
In the years that I have practiced law, I have taught many seminars to both lawyers and physicians concerning the subject of personal injury cases and health care. I have often been asked the question, “What is the difference between personal injury healthcare and ‘regular’ healthcare?” In other words, how does the fact that a patient has been involved in a trauma event cause needed health care practices to be different? When the patient is involved in a compensation-seeking claim, does it change the requirements for medical documentation? The short answer is that in a perfect world there would be no difference. However, in reality, ordinary office visits usually have the patient making a series of subjective complaints, with a physician acting on auto-pilot with a standard set of well-known remedies to solve a “routine” set of symptoms. In this situation, SOAP notes are scant, examinations are bare bones or incomplete, and subsequent reports to insurance adjusters or attorneys are infrequent or nonexistent. However, in recent years, the paperwork demands and pressures on the health care industry have increased to such a point that the gap between ordinary health care and forensic health care has narrowed. Nevertheless, the perception is that personal injury health care is more burdensome in terms of documentation.
Personal injury or forensic health care demands documentation, objectification, and justification for every modality administered. In no other arena will the physician’s work be more scrutinized and challenged than in the personal injury arena. Insurance companies are constantly looking for reasons to not pay a claim. Juries are told that they must only award the cost of medical care that is “reasonable, necessary, and arises out of the subject incident.” Accordingly, if an insurance company can find a reason for non-payment they think they can “sell” to a jury, the health care provider may not get paid.
What is reasonable? What is necessary? What is caused by, aggravated by, or related to the subject incident? Each of these three questions poses fertile ground for defense attorneys to challenge and question the health care that was provided. If the defense is successful in convincing the jury that something was not reasonable or necessary, or was unrelated to the subject incident, then the judge tells the jury that the subject medical care cannot be awarded as damages to the victim. Under this standard, insurance adjusters, long before trial, determine whether or not they will voluntarily choose to pay the claim.
Should physicians be concerned whether the cost of their care is awarded as damages to the patient? Yes! This is obvious if the physician is working on a lien basis or has agreed to wait until the patient receives his or her settlement or judgment before the bill is collected. However, it is also important because even if the physician is not directly a recipient of the jury’s decision, the physician has probably already been paid for his or her services by virtue of an insurance policy which has a direct interest in subrogation or reimbursement in the outcome of the claim. Personal Injury Protection or No-Fault benefits in Utah or other No-fault states (or “med-pay” benefits as is often provided in other non-no-fault states) generally has a direct right of reimbursement. Likewise, health care insurers have a right of reimbursement under the ERISA law which is also directly affected by the outcome of the jury’s decision. If for some reason the amount of medical care or chiropractic care is not awarded by the jury, then the health care insurer is not reimbursed. Failure to reimburse the health care insurer for payments expended on behalf of the patient further pushes up the cost of insurance making health care less affordable for all. Insurance companies are also beginning to seek restitution from health care providers they previously paid where a court has subsequently determined such payment was inappropriate.
In a personal injury or forensic healthcare situation, the doctor’s or physician’s records will be read and reviewed in detail by attorneys for both sides. The insurance company, the judge and jury (if the matter goes to trial) will also review the records. The plaintiff’s attorney utilizes the physician’s records to determine what kind of case the plaintiff really has and whether it is even worth pursuing. How badly injured an individual is and how much those injuries directly relate to the claim has a direct bearing on the size of the case and the plaintiff attorney’s evaluation. It is not the only factor, but it is probably the most important factor.
Some may be surprised by the previous sentence. How could the extent of the plaintiff’s injuries not be the only factor in determining the value of the plaintiff’s case? There are numerous other factors also influential in that determination. The strength of the plaintiff’s case is also controlled by the strength of the plaintiff as a witness, the strength of the defendant as a witness, the facts related to causation of the accident, issues of comparative negligence, if any, the strength of the physician as a witness, juror bias, the nature of the negligence or “badness” of the act involved and of course the relative strength of the attorneys involved representing the parties. This last factor is generally far less important than it is made out to be on television or in the media since jurors try to ignore any lawyer and discount what they say if possible. All of these factors, and others, work in concert to determine what decision a jury might make, and accordingly, the relative evaluation of the case by both parties. In a typical simple negligence case (whether it be a slip-and-fall, automobile accident, or professional negligence), it is possible for the defendant to be responsible for the injuries but for the jury to determine that the injuries are not very big or that the health care provider was not useful and unimportant to the patient’s outcome. If either of these scenarios occur, the jury’s verdict could be minuscule or non-existent. If that occurs, the plaintiff and the plaintiff’s attorney will have exhausted thousands of dollars in both money and time in an unprofitable endeavor. Juries are ordered by the court to award money only for compensation for the wrong and not to award money for punishment of the wrongdoer. Only in very rare circumstances does the court allow something called “punitive damages” which provides for the punishment of the defendant.
In the process of making their determination, juries are extremely skeptical. Jurors are instructed by the court that they cannot make any decision until convinced by a preponderance of the evidence that a certain outcome is justified. The attitude of jurors in recent years has been to come to the courthouse suspicious of the system, suspicious of the lawyers, and suspicious of anyone claiming to be injured and asking for money. Jurors have been preached to by the insurance industry for decades about how there are too many lawsuits, too many lawyers, too many people trying to sue someone simply to milk the system and get something for nothing. Political parties have often used the alleged “run-away court system” as justification for their political agendas to pass various versions of “tort reform” to take away the rights of injured persons to seek fair compensation. The news media has presented the extra-ordinary and absurd case that occasionally happens with outcomes that, to the casual listener, seem to be evidence of a judicial system that has run amuck. In most of these cases, the media has also not told the “other side of the story” and explained why a jury of citizens, after having heard all of the evidence, will make such a determination. The average person on the street believes that jury verdicts are simply too high. When they are given an opportunity to sit on a jury, people come in to the courtroom with a pre-conceived notion that they must see to it that fewer dollars are awarded. These prospective jurors are also consumers tired of the high cost of everything, including and especially health care. It is into this environment that the plaintiff and his counsel try to persuade the jury that the case before them is different and is meritorious and not frivolous. It is because of these special burdens that the treating physician needs to understand that gone are the days when anything that a physician says will be believed and accepted as true. Gone are the days when any old documentation or note taking a physician tries to scribble on paper will be accepted as gospel. Likewise, gone are the days when simply anything the physician does for the patient will be considered valuable and any charge the physician makes will be considered reasonable. It is in this environment that the physician must document his records so that the records standing alone, when reviewed by the jurors in the jury room, will tell them everything that needs to be shared about condition of the patient and the treatment given by the physician, its justification and the value of the charges. Even if the physician is called to covet to testify (which is increasingly rare), the physician’s verbal explanation of what he or she did to the patient is often not enough to persuade the jury. A jury tends to discount the verbal testimony of witnesses and instead relies far more heavily on the black and white documentation proof before them in the jury room. In short, if the physician’s records are not up to par, his verbal testimony will be discounted or ignored and the charges for the physician’s care will be denied.
Effective personal injury health care begins with the physician’s initial examination. The examination needs to be thorough and complete, with a complete patient history and checking all body systems and functions. The patient’s history will often reveal data essential to injury causation and apportionment issues. It is hard to know where to send a patient if you do not know where he has been.
One common problem with emergency rooms is that they are only concerned with things that are an immediate emergency. If the person has no broken bones, is not bleeding and is breathing, the patient is generally discharged from the emergency room within a few hours with a hefty bill and only minimal instructions to seek follow-up care.
American society has long placed health care providers on an imaginary pinnacle of wisdom and influence such that most people will do nothing about their health care unless they are told to do so by a doctor. If the doctor does not give them explicit instructions for follow-up care, many individuals do not seek it until injuries have developed and manifest in such ways that they become impossible to avoid. Emergency rooms in this country are overburdened and overrun. Likewise, there is also no question that emergency rooms are simply not set up to micromanage patient healthcare. They are triage facilities designed only to provide initial screening of the most serious injuries to allow other health care providers to provide the rest of the needed care. Unfortunately, many ER facilities counsel patients that soft tissue injuries will simply spontaneously resolve without further care. This advice leads to both unnecessary patient suffering and often further complications with improper healing.
Unfortunately, many chiropractic physicians and MD’s in private practice tend to only examine and focus on those areas of the body that they are most familiar with and comfortable treating. For example, chiropractors who ordinarily focus on the spine oftentimes overlook symptoms related to the extremities. This initial oversight can allow problems to develop that could have been corrected early. However, when the problems do develop later, the record makes the problem look like they were new problems. A more thorough patient history could have laid the foundation to build a bridge to the developing problems. But, if the record is silent, the insurance industry will challenge the “new” symptoms as being unrelated to the subject traumatic event. Failure to include an undiagnosed component may cause the treating physicians treatment plan to go down the wrong path. This is also inefficient and unproductive for the patient. Furthermore, in front of a jury, it can make it look like a physician was careless and incomplete in his or her work. This problem is complicated by the fact that often, when a patient has a pantheon of symptoms, the greater symptoms and pain can often mask the lesser symptoms. Although it is best to prioritize treatment to address the greater problems first, this should never be used as an excuse for ignoring the lesser problems. All problems should be diagnosed and addressed in a systematic way. The patient’s complete initial history and detailed description of the accident can reveal much for the physician and prevent the “overlooking” of problems.
Once the initial thorough examination and all diagnostic studies have been completed, a complete and thorough diagnosis should be rendered. To the extent that this diagnosis can be graded in terms of degrees, it should be done so that the diagnosis taken at the outset of care can be further used as a baseline both for the improvement of the patient’s condition and also a baseline in the event there are subsequent traumatic events which the insurance industry will try to use as an explanation for the patient’s problems. For chiropractors, the Croft Guidelines are excellent at doing this. They allow a system of grading and typing the injury in such a way that can be subsequently compared as time passes and new events occur. Furthermore, the Croft Guidelines provide exceptional researched and accepted treatment protocols for care of the patient. They are easy to defend.
In short, measuring the patient’s condition gives you a place to start when measuring the patient’s improvement through the course of care. Without documented and measured improvement, the care given will be challenged as being merely palliative and unnecessary. If it is unnecessary, it will not be paid for.
Once an appropriate diagnosis is reached and care has begun, care should be continued only as long as progress is occurring as demonstrated through objectified and measured re-examination. Re-examination should occur at consistent intervals during the course of care. In the chiropractic model of treatment, I recommend once every twelve visits or once every thirty days. In no event should a re-examination occur later than six weeks after beginning care. If the patient’s condition is not improving, do something different. Change modalities, try something new, or refer the patient out. If you continue to treat the patient when no progress is being measured, you run a high risk that you will be working for free. Not even the finest legal counsel can guarantee that you will recover your fees and charges if the attorney cannot prove that what you did provided a clear value to the patient. Furthermore, at the end of care, the patient will not only be frustrated and angry at the physician, but he will probably tell his friends. The most valuable patient is the one who refers others to the practice. Leave your patients satisfied that they received fair value for what was incurred. It is easy to have short-term “feel good” experiences at a chiropractor’s or physical therapist’s office. However, patients these days are more value-conscious and will demand to see overall progress in their condition as opposed to merely temporary relief where the pain only comes back in equal intensity. If the patient believes that relief was only temporary and the symptoms returned in only a few days, they will quickly discharge themselves from care.
Another critically important area in documentation of injuries in the personal injury or forensic setting is the issue of causation. In Utah, causation is largely determined by symptomology. I have spoken with many physicians, particularly MD’s, who believe that they only need to treat conditions or symptoms and need not be worried about causation. That may be true for ordinary patients, but when a traumatic event is involved, the number one question that the court will ask is, “What caused this injury?” The human body is a marvelous creation, but it is subject to a number of potential injuries which can cause painful and sometime lifelong symptoms. The interplay between bone, cartilage, disc, ligaments, muscles, and nerves is complex and fragile. If you as a physician need to take courses in basic biomechanical issues in order to gain an understanding of the dynamics of motor vehicle accidents, slip-and-fall injuries, or other kinds of forensic events, then do so. Orthopedic, neurologic and muscular-ligamentous injuries ordinarily do not just “happen.” They are generally caused, brought about, or aggravated by something.
In every forensic setting, it is important for the physician to include a statement as to the origin of the patient’s problems. In order to do so, it is not necessary that the physician be 100% certain. The physician only has to be convinced by a “preponderance of the evidence.” This means that the physician only has to believe that it is “probable” or “more likely than not” that the subject traumatic event (motor vehicle accident, fall, etc.) caused, precipitated, or aggravated the patient’s symptoms. Put another way, if the physician is only 51% sure or convinced that the traumatic event brought about the patient’s condition, that is sufficient under the law to say that the patient’s conditions were brought about or “caused by” the subject compensatory event. This decision only has to be based upon a reasonable degree of probability or certainty within that physician’s line of specialty. In short, “Doctor, what is the most likely explanation for this patient’s injuries?”
This level of probability or reasonable certainty often cuts against the grain of most medical school decision making or causation algorithms. In medical school, a physician is taught to rule out causes in a truth-functional logical pattern of thinking. This pattern has the good physician, one by one, ruling out the entire world of possibilities. That may be an extremely effective method for the brilliant Dr. House. However, in the civil courtroom there is simply not time to demand such a high level of certainty or we would never be able to reach any decision or conclusion. The “preponderance of the evidence” burden of proof is applicable only to civil courtrooms. In criminal courtrooms often a different standard of proof called “beyond a reasonable doubt” of evidence may be used. However, that level of certainty is neither necessary nor demanded in a civil setting where the claims in a personal injury lawsuit will be brought.
I recommend to each physician, who has a patient indicate that his or her injuries stemmed from any kind of traumatic event, include in his notes or records a statement relative to causation. This causation statement will have the effect of minimizing the demand or request for either narrative reports or a need for the physicians to have to testify in depositions or trial. Many physicians erroneously believe that not discussing the issue of causation will guarantee they will not be involved in legal actions. That is not true. If the records do not say it, the attorneys will have to request a report or deposition in order to ask the physician directly. Even if the physician believes that there is no causal link between the event and the alleged injuries, the defense attorney may be interested in subpoenaing the physician to trial to give that testimony as proof that some or all of the plaintiff’s claims are unfounded. Likewise, the statement of causation is also important in allowing for the subrogation or reimbursement of health insurance carriers’ payments. Voice your opinion in your notes and you will have to do so less often in court.
A causation conclusion is easier to reach than many physicians might think. If the patient had no symptoms before an event and the symptoms began immediately or within a short time thereafter the event, and if the symptoms are the kind one would reasonably expect to have been produced by such an event, it is a pretty good indication that, at a minimum, the subject event is highly suspect for being the cause of the symptoms. The suspicion that the event caused the symptoms is substantially raised further when there is no other reasonable and probable explanation that can be given for the relatively sudden onset of symptoms. Under most circumstances, the above set of facts would lead a normally competent physician to reasonably conclude, within a reasonable degree of medical or chiropractic probability, that it is more likely than not that the subject event “caused” or “aggravated” the symptoms producing the injuries.
The most common challenge medical practitioners find on the issue of causation is when a patient’s symptoms are multi-factorial in nature. This is usually the case when a patient has a number of naturally caused degenerative processes in the body that make a patient more predisposed to a certain condition than would be an otherwise healthy individual. In this situation, the law has been made clear. If the patient was non-symptomatic prior to the traumatic event and the traumatic event caused, aggravated or “lit up” the patient’s condition to the point where the condition then became symptomatic, the traumatic event is considered to be the “cause” of the patient’s entire condition, even if there were several underlying weaknesses or conditions which added or contributed to the cause.
Many physical conditions are non-symptomatic or latent. These conditions may lie dormant for many years before being activated or brought to life by a traumatic event. The dormancy of a condition is not held against the victim in his or her efforts to claim it as being a result of the accident or traumatic event. Put another way, the persons causing the accident take the victim as they find them. If the victim is a healthy athlete who is hardly injured from the wrongdoing, then the tort feasor or perpetrator of the act lucks out and will likely be held to a smaller verdict against them. Conversely, if the perpetrator injures a frail, elderly person, the verdict may be greater. That is the risk the wrongdoer takes in causing the wrong.
Even if there are other elements of contributory factors to the patient’s overall condition, the threshold question the court system is concerned with is, “What brings about or activates the symptoms being complained of?” If the systems remained inactive or dormant for the immediate time period without the subject traumatic event occurring, then the question of causation is sufficiently proven.
Closely related to the issue of causation is the use of examination components for measurement and objectification of the injuries. A common defense question in a deposition that I hear goes something like this: “Doctor, isn’t it true that the only thing that you really have to go on here is the patient’s subjective complaints of pain?” If I am at that deposition, I hope I never hear my client’s physician say “yes” to that question. Even with simple muscle spasms, a physician’s trained fingers running down the spine can sense heat changes and sometimes the actual movement of muscle twitching in spasm. It is generally not possible for a patient to fake or artificially create his or her own muscle spasms. Can another trained physician likewise come and feel the same muscle spasms including temperature differences and vibrations? Of course! Therefore, even simple spinal palpation is an objective measurement of paraspinal muscle spasms. How many vertebral levels were involved in the spasm? Did that number of levels decrease in subsequent re-examinations? If so, objective progress was made between the two examinations. Appropriate use of radiology, including radiologic measurements in millimeters of translation, Penning angles, and other measurements can be used to objectify the extent and degree of problems. In your report, examination notes, or narrative do not simply say, “subluxation” or “loss of curve.” While these statements may be true and correct, they are not as helpful as a statement that actually indicates measurement.
Numbers of orthopedic and neurologic tests which are found to be positive can also be utilized as a means to measure objective progress. Orthopedic and neurologic tests are tests used across the board by MD’s, DO’s, and DC’s in evaluation of the kinds of red flags which such tests tend to reveal. The manner in which these tests are performed varies very little between the disciplines, and generally another physician of the same or different discipline can reproduce the tests and come up with the same conclusions. Therefore, these tests are objective in nature. Did the amount of orthopedic or neurologic tests which were found to be positive decrease in the subsequent re-examination? If so, then progress has been made.
Another critically important area to measure status and progress is the range of motion measurements. It is not nearly enough to anymore to say, “range of motion decreased.” It is far more helpful to give the normal or expected range of motion in degrees and the measured range of motion in degrees found in the particular patient. Therefore, if painful muscle spasms are restricting movement, the reader of the report, be it an adjuster, an attorney, or a juror can see exactly what you are talking about. Likewise, subsequent measurements on re-examinations can tell exactly how much improvement has been made.
“Malingering” or “Non-Organic” Findings
A final area that needs to be added to the list of important component of personal injury or forensic medicine of chiropractic care is the subject of “malingering” or “non-organic” findings. Every adjuster is suspicious for it and looks for it. Likewise, every perspective juror believes that the plaintiff is probably faking his or her injuries at least to some degree. Although Wadell’s signs were never intended to be a litmus test for malingering, being familiar with Wadell’s signs can be helpful. There are numerous other malingering tests which most physicians are familiar with from distraction to simple repeated tests. The physician should include in his notes that he is concerned about the potential for malingering or non-organic findings in a compensatory situation, and in fact has tested the plaintiff and found that the plaintiff was not malingering and gave consistent, true and faithful effort and responses. If that is not the case, every good plaintiff’s attorney wants to be the first to know if his client is either faking it or trying to stretch the truth. The attorney representing a patient needs to know if the patient has the potential for histrionics as a witness. In contrast to images presented by the media, hyper drama does not play well in the courtroom. Juries simply do not buy it and often respond negatively to those witnesses or claimants who attempt it.
In my experience as an attorney, I find that the issue of secondary gain motivation is far exaggerated by the defense industry. I have never had someone (even in big cases where the payout has been large) tell me they were grateful for the money and wanted to attempt the injury again. As a general rule, the paltry compensation that the people receive through the court system is never equivalent to the amount of blood and pain the patient has gone through.
Personal injury or forensic healthcare may seem to some physicians like it is more work than it is worth. However, the things I have suggested above are nothing more than good medicine and good chiropractic care. An increasing number of physicians of all different types of training are realizing that the compensation for personal injury treatment that is properly documented, as outlined above, is more fair and complete than the ridiculous reimbursement schedules demanded by all other types of health insurance and government health care reimbursement programs such as Medicare and Medicaid. However, that rate of reimbursement in the forensic setting is only provided when the care is demonstrated to be justified and appropriate.
The current system of justice that we have is under constant attack by forces with political agendas that would take away the rights of victims to be fully and completely compensated for what they have lost. Tort reform proposals not only attack victims but also inherently attack the physicians who care for victims. Few physicians limit their practice exclusively to people that have been injured in traumatic events caused by third parties. Nevertheless, most physicians realize that treatment of personal injury victims is and can be a very valuable component to their overall practice of medicine or chiropractic care. If handled correctly, trauma patients will come back for other care and refer their family and friends.
If any physician reading this has any specific questions or interest in the subject matter, I welcome the inquiry. You may contact me at email@example.com or visit www.larsonlawutah.com for other contact information.