Academy of Chiropractic Personal Injury & Primary Spine Care Program
Quickie Consult 111 I
"The NEW Basics”
The bar has been reset for the minimum
Over the last 6 months as I have been traveling the country and lecturing (I call it my market research and the core of this program), I have been getting direct feedback from the lawyers as to what judges will allow in court. The most pressing question has become, “Why is that important?”
The answer is found in a baseball analogy. If a player slides across home plate and the tag is applied, is he safe or out? The only correct answer is, “He is nothing until the umpire calls it.” From there on, it doesn’t matter if he was actually safe or out, it only matters what the umpire said. In today’s world, there are instant replays to determine if the umpire is correct and that usually takes under 3 minutes. In court, there are also “instant replays” called appeals. The only difference is that appeals take months and it costs $10,000’s to perfect those appeals, prior to a ruling.
When you are on the witness stand, you have to be credentialed and there are formal proceedings, as we have gone over in length, in order to determine if you are qualified as an expert. Should a judge rule that you are not, in the real world, no lawyer (with rare exception) will take your credentialing issues to the appellate division as it is too expensive. However, here is what every lawyer will do…NEVER USE YOU AGAIN and tell all of their friends at the next bar association meeting.
In 2011, there was a “landmark” very low court decision because it both set the framework for denying DC’s the right to testify on MRI and secondly, because it was an Allstate case. This argument has been used in many states by the defense. Lawyers from numerous states have certified that it is getting more difficult to certify chiropractors for testifying and the main area of contention is MRI’s.
Plaintiffs’ lawyers are well aware of the defense tactics in getting DC’s barred from testifying and the defense lawyers are appealing to the judges’ experience and increased scrutiny of the experts using the various legal “litmus tests” available. The other crucial component we must remember is that judges are elected officials that have to rely on campaign funds and support to both get elected and re-elected. Often, this is politics at its worst with an understanding that insurance companies often place their former employees in these positions with significant campaign contributions to ensure winning and it is all legal.
It had been my unfortunate experience to testify in front of a judge who had roots in Allstate and after I eloquently testified, she said to the lawyer in front of me while I was still on the witness stand, “Please tell me why I shouldn’t disqualify your expert?” This judge didn’t even have the courtesy to do this in private. Her goal (according to me) was to embarrass me in front of the entire court and it worked. That lawyer not only didn’t use me again, we have not spoken since that time and it was over a decade ago.
Although we are gearing up to teach a new series on significant bodily injury in the absence of a herniated disc, it is still the industry standard in virtually every court nationally to accept disc herniations as significant injuries where it is almost guaranteed the lawyer will win his/her case or realize a settlement. It is also understood that unless the DC shows significant advanced post-doctoral training in MRI spine interpretation, he/she will not be allowed by most judges to testify. The issue now becomes what is the minimum for post-doctoral training.
A weekend course through your state association used to be the standard. However, that alone will probably not withstand scrutiny. The bare minimum is now the 25 hour MRI Spine Interpretation course (www.teachdoctors.com) or equivalent (but there is no equivalent program in chiropractic).
As a result of the court rulings and actions of the defense lawyers, this course is now the new minimum standard to ensure being accepted as an expert for MRI spine. As I shared with you last week, based upon the direct feedback I got from lawyers nationally, in the near future, that, too, will be barely sufficient and you need to then plan ahead and attain your mini-fellowship in neuroradiology for MRI spine.
IF…you have associates, it is now critical that they, too, take and pass the 25 hour MRI course as a minimum as anyone who touches a patient can be subpoenaed for deposition or trial. You are still only as strong as your weakest link and a non-credentialed associate is just that, your weakest link. In addition, this course will educate the associate on triaging and other ancillary issues. Many owner DC’s mandate that their associates pay for and take the course, but also give deadlines as to when it must be completed. In addition, all associates must have their CV’s completed on the US Chiropractic Directory.
The success equation, especially in personal injury, is a frequently changing formula and this is a classic example of just one of those changes where you need to be proactive. The #1 issue I hear from almost every new member is, “I used to be busy, then one day I checked my stats and surprisingly, I had almost no PI cases which explained my declining income.” Getting on top is much easier than staying on top. In order to maintain your personal injury practice and resultant higher income, you must change with the industry and it changes frequently.
Changing with the times =
1. More PI patients
2. More income
3. Less stress
Failure to change with the times =
The opposite of the above