Lawyers PI Program

#74

From the Desk of:

Mark Studin DC, FASBE (C), DAAPM, DAAMLP

 

The Fine Art of “Bullcrap”

AKA “King of Crap”

 

I have now read my “umpteenth” report that a doctor created for a lawyer. I have also read just as many that doctors have created for insurance companies. My job is to critique these and teach the doctor how to communicate the truth in an admissible format. The problem I continually face is that doctors are lying in their reports. How can I fix that? I can’t, only you can.

 

Lying is a very strong word. It causes nations to go to war, marriages to break up and friendships to be destroyed for a lifetime. I have always prided myself in brutal honesty, to a fault perhaps, but you always know where I stand. I am the worst politician that has ever existed because I simply tell the truth as I see it and if my perception is wrong, then we have a discussion. Unfortunately, some people choose not to discuss my false perception if I am wrong; they just call me an asshole. That I can live with, but a “bullcrap artist” is something I cannot.

 

Integrity is one of the basic foundations for success and is non-negotiable. That is an innate law.

 

Lying comes in many forms and I am going to share with you that slinging bullcrap at the professional level is the quickest way to destroy your career. In fact, it would be easier to take the proverbial gun and shoot yourself between the eyes, forget the feet. This way it’s quicker and less people get hurt; only you do.

 

Bullcrap Story #1:

 

Narrative language:

 

Conclusion:

 

“Mrs. Jones suffered from a rear end collision that resulted in a broad based disc bulge, as evidenced by MRI 2 weeks post trauma. This disc bulge compressed the spinal nerve root and is the competent producing cause of her symptoms.”

 

That would make most lawyers go into heat with the prospect of “big bucks” to follow, and they have you and only you to thank because you causally related the bulge to the accident. What does a lawyer now do with this information? They call the carrier and make a large demand. They file motions and draft a lawsuit. They consider hiring other specialists, such as an accident reconstructionist, vocational specialists and economists to determine the future loss earnings of this patient.

 

Many lawyers do not have funds available for this type of litigation, as it is expensive to try a case, so they borrow money from a funding company to pay the experts and go to trial. They are responsible for repaying these debts if they lose because the majority of their clients cannot afford the fees. However, the lawyer is secure in the knowledge that their expert, you, has rendered a “slam dunk” case.

 

During the trial, the opposition has their expert on disc pathology, triple board certified neuroradiologist, who heads the research team at Harvard and Stamford, get on the witness stand and quote numerous sources, including his or her own opinion, and correctly states that disc bulges are degenerative in nature and not a result of the trauma based upon the timing of the MRI and the accident. After hearing about the testimony, you do some research and realize you were wrong. Oh well. You go home feeling badly that you misunderstood the pathology of disc in relationship to trauma and see your next patient the next morning. At the same time, you cash your check for expert testimony and life is not all that bad…so you think!

 

The lawyer just banked on you as the expert, only to realize that the only thing you were expert in was bullcrap! He is now stuck with a huge bill that he has to pay, and that deficit is between $15,000 and $25,000. His reputation is severely tarnished and his client is furious with him.

 

The following week, the lawyer goes to a bar association function and with this huge debt hanging over his head, begins the process of trashing your reputation to anyone and everyone that will listen, as his story grows along with his anger. Due to the fact that it will take him months to years to repay this debt, each time he writes a check, it will remind him to tell the story. And you wonder why it is so difficult to have a PI practice in your community? What did you just do? This scenario is a very common one I have read in your reports at least a dozen times in the past 3-4 months.

 

The doctor can feel they made an error or miscalculated. This doctor has earned the title of “King of Crap,” as he/she held to be expert at the expense of everyone else. If you are an expert, be one.

 

Bullcrap Story #2:

 

Narrative language:

 

Conclusion:

 

“Ms. Jones’ present whole body impairment rating, based upon the 6th Edition AMA Guides to the Evaluation of Permanent Impairment, is calculated as follows:

 

Current Symptoms: Intermittent significant neck pain provoked by, and limiting, her normal activities of daily living.

 

Functional Assessment: PDQ score is 30/150, consistent with mild disability; symptoms with normal activity consistent with moderate disability [GMFH-CDX= 2-1=1].

 

Physical Exam: Slight decrease in cervical range of motion with normal neurological exam [GMPE-CDX= 1-1= 0].

 

Clinical Tests: X-rays done 1-31-08 and 1-15-09 [GMCS-CDX= 0-1=-1].

 

Diagnosis: Cervicalgia (723.1), headache (784.0), cervicocranial syndrome (723.2).

 

Impairment Rating: Class diagnosis 1 = 2%; grade modifier for functional history = 1; grade modifier for physical exam= 0; grade modifier for clinical studies = -1; net adjustment = 0.

 

Whole body impairment rating 2%.“

 

Although this is a low impairment score, this lawyer will take it and try to leverage the carrier for settlement based upon your work. They feel any settlement is better than none, especially with such a low score. Here are the problems with this formulation. The 6th Edition does not allow for range of motion studies, thereby invalidating the physical examination. Symptoms have no bearing on the rating. Functional Assessment cannot be used unless there are 2 spinal regions that have ratable diagnoses, and none of the diagnoses are ratable, thereby invalidating this entire section.

 

This lawyer will not spend any money on a 2% impairment rating, but will learn in short order form the carrier that the doctor’s rationale is fabricated (steeped in a significant amount of “bullcrap”). This lawyer will never work with this doctor again, as the doctor is far from expert. In fact, the lawyer will not only refuse to work with this doctor, but will trash the doctor in his/her sphere of influence amongst his/her professional colleagues. Read the end result in story #1. The story repeats itself. What did you just do?

 

The doctor can feel they made an error or miscalculated. This doctor has earned the title of “King of Crap,” as he/she held to be expert at the expense of everyone else. If you are an expert, be one.

 

Bullcrap Story #3:

 

Narrative language-diagnosis:

 

“Grade IV CAD classification using Croft Guidelines, 1992. Ligamentous instability and neurological findings were present. There are also limitations of motion. This is a person’s personal opinion and not a formal diagnosis accepted by ICD-9. A court will reject this as hearsay.

 

  1. 737.41, cervical kyphosis not cervical, only kyphosis. Not too bad.

 

  1. 721.0, cervical spondylosis without myelopathy.

 

  1. 728.84, cervical ligament laxity and hypermobility C3-C4, C4-C5, and C5-C6.728.84 is diastasis of muscle. This diagnosis does not exist.

 

  1. 847.0, late effects cervical sprain/strain injury.This diagnosis is cervical strain/sprain. Late effect is fabricated.

 

  1. 847.1, late effects thoracic sprain/strain injury.This diagnosis is cervical strain/sprain. Late effect is fabricated.

 

  1. 721.2, thoracic spondylosis without myelopathy.

 

The following (8-13) have all been resolved. Therefore, there is no diagnosis to be rendered because no condition exists.

 

  1. 847.20, resolved lumbar sprain/strain injury.

 

  1. 846.00, resolved lumbosacral sprain/strain injury.

 

  1. 780.4, resolved dizziness.

 

  1. 784.0, resolving posttraumatic headache.

 

  1. 310.0, resolving post-concussion type symptoms.

 

  1. 782.0, resolved paresthesia of left arm.”

 

This lawyer will look at the list of diagnoses and eventually realize that not much exists. Some cannot be used in court and others have resolved. All that is left is arthritis and loss of the cervical curve. The lawyer will look for a real expert who knows what they are doing. Read the end result in story #1. The story repeats itself. What did you just do?

 

The doctor can feel they made an error or miscalculated. This doctor has earned the title of “King of Crap,” as he/she held to be expert at the expense of everyone else. If you are an expert, be one.

 

Bullcrap Story #4:

 

Narrative language

 

“Palpation showed fibrosis was evident at C1, C2-rt., C5-C6, T2-T8, L4-L5, and right S-I joint. In addition, there was appositive foraminal compression test that revealed ligamentous damage in the cervical spine.”

 

This is a classic. You can palpate tenderness, rigidity and abnormal tissue response upon deep palpation, but diagnose fibrosis? On cross examination, if it ever got that far, the doctor would be embarrassed.

 

Furthermore, what is the purpose of the foraminal compression test? The answer is to reveal nerve root compression or entrapment, not ligamentous damage. This single statement will invalidate a doctor as a specialist. The lawyer lives in the world of these tests and will know if the doctor is being factual or not. You do not get 2 chances to be the cause of a lawyer losing a case because of your incompetence.

 

The doctor can feel they made an error or miscalculated. This doctor has earned the title of “King of Crap,” as he/she held to be expert at the expense of everyone else. If you are an expert, be one.

 

Read the end result in story #1. The story repeats itself. What did you just do?

 

Dr. Craig Castanet, from Georgia, challenged me a few months ago on my use of a few definitions regarding disc nomenclature. Basically, I was on firm ground as my argument was based on well-regarded sources in the radiology world. However, he made a very compelling argument and cited additional references that made my sources outdated and antiquated.

 

So here I was, in September, October and November of 2008, repeatedly being challenged by someone standing his ground and telling me I was becoming a dinosaur (outdated). It took me those three months to check references, communicate with leaders in the neuroradiology community and acquire the most current research, only to find out he was accurate and his opinion was timely. It, therefore, made me the “King of Crap,” as my understanding was incorrect.

 

Was my research wrong? No, just outdated. That made it wrong for today, although it was right for yesterday. In the world of healthcare and science, you are either accurate or you are not. To rectify the situation, I have spent the last 2 months creating an MRI certification course because the entire profession is entitled to the most current research and the opinions on a given subject of the brightest minds in the world. It’s bad enough I became the “King of Crap” on that subject. You deserve better.

 

The message is simple: Tell the truth, not your truth, the truth of the story, which often requires hard work. You need to work at your facts, which are a by-product of research, continuing education and asking more questions then answers exist for. You need to challenge the experts and if they are truly expert, they too will pause and seek additional research, continuing education and start to ask additional questions where answers do not yet exist. If an expert will not pause to consider a dissenting opinion, they are not truly expert; they are simply pompous. In the end, together we will find the truth and be able to report the same in a factual way, “as a true expert.” It is that reputation that will enable you to win, not just in PI, or even in practice, but in life.