Academy of Chiropractic’s Lawyers PI Program
Lawyers Meetings-Communication #18
From the Desk of :
Mark Studin DC, FASBE (C), DAAPM, DAAMLP
“Demonstrative Proof for Serious Bodily Injury in the Absence of a Positive MRI”
You are in court testifying for a patient that has a normal MRI with a positive EMG at C5-6 on left, persistent neck pain on the left with weakness in the left arm, headaches and significant losses in range of motion in the cervical spine. The patient also complains of significant functional losses at home, work and school. After testifying for six hours the defense Dr. gets on the witness stand and simply says I acknowledge everything the treating Dr. just said however, pictures don’t lie and here is an MRI of a perfectly normal spine. Therefore if there was injury, you would see the injury and you do not. The jury rules in favor of the defense because there is no visual or demonstrable evidence showing bodily injury.
X-ray digitizing has quickly become a powerful accepted measure for demonstrably proving to the courts soft tissue injury beyond the MRI or CAT scan where disc injuries have become the arbiter for serious injury. As a result, lawyers are hard pressed to present verifiable proof of bodily injury and the carriers have been diligently working hard to remove this tool from the legal community and doctors alike.
2 cases of carrier interference with x-ray digitizing are in New York and New Jersey. In the mid 1990’s, the State of New York ruled that in order to perform video fluoroscopy (precursor to x-ray digitizing) a board certified radiologist had to physically push the button on the machine to take the images. This instantly put every video fluoroscopy company out of business as there are virtually ZERO radiologists nationally who take their own images. The carriers in effect prevented the diagnosis of ligamentous laxity from being realized.
On January 3, 2013, the Governor of New Jersey signed into Law NJSA 39:6A-4a, a law that took months to develop and bring to the Governor to be signed into law. At the 12th hour, literally at the last minute the carriers were able to get added in a “little debated” language to preclude x-ray digitizing being a compensated item. In essence, they prevented or severely limited AOMSI from being diagnosed. Those fighting the legislative bill, primarily trial lawyers, did not put much energy into opposing x-ray digitizing. Their feeling was losing one simple service would not have a major impact on the entire process. However the carriers knew that without x-ray digitizing it would severely hamper the diagnosis of ligament laxity and keep off the table a high whole person impairment value. In turn, this one “little. Last minute addition” fed into their overall Colossus goal and perpetuate “low ball offers” to the injured in settlements with the legal community never understanding why.
As I have stated many times most everything that starts in this country is bad comes from New York and then New Jersey perfects the “screwing” and this is one prime example.
Another lesson is the word “threshold.” In order to have legal standing of a case to be accepted by the courts you must meet this standard and two of the most difficult standards are in New York and New Jersey. These states mandate that lawyers meet a very specific criteria not just win a case but to be able to initiate the case. The standard in New York is defined as “permanent and significant impairment of body, part or function.” Unless the lawyer has documented and demonstrable proof of the above, they have no case. In addition, the courts in these “bell-weather” states are very lenient in summary judgments for dismissal so as not to tie up the courts in “non-threshold cases.” Therefore, lawyers of these states must function in a higher level than any other state with one goal in mind. Where is the demonstrable proof of permanent bodily injury? Which raises significant challenges in the soft tissue cases for the lawyers.
According to 10,000’s lawyers nationally if this standard is met in virtually every state, every plaintiff lawyer will prevail regardless of that state’s standard. As a result it has been my goal to teach you how to document the bodily injuries (when clinically present) at the highest national level, which then makes the lawyer’s job that much easier and places you “ahead of the pack” of your competition. This also holds true for New York and New Jersey because very few doctors understand the business and legal requirements of the lawyers they work with.
The key in every state is demonstrative evidence of bodily injuries. Historically an MRI finding of a herniated disc was the sole source of demonstrative evidence of soft tissue injuries and over the last 30+ years I have been arguing, pontificating and shouting that many patients with normal MRI’s have devastating injuries, which has fallen on deaf ears in the legal system. The sole reason: lack of demonstrative evidence. I have argued positive electrodiagnostic testing, functional losses, histories and everything else medicine has offered as proof in the absence of a positive MRI. At the end of the day the courts have always swayed towards the demonstrative evidence, which has become the core of the defense counsel and IME strategies through the years.
DEMONSTRATIVE EVIDENCE IN THE ABSENCE OF A POSITIVE MRI
Simply put; this is the single reason for a lawyer to prevail in their case should you be able to causally relate the trauma to the bodily injury.
Diagnosis of “laxity ligament” is currently the best tool to be able to demonstrate bodily injury in a verifiable, universally acceptable method. It is critical to understand that you the clinician are NOT creating this diagnosis simply by a “clinical decision making process.” You ARE making this diagnosis by determining measurements on x-ray and applying them to accepted standard based upon the AMA Guides to the Evaluation of Permanent Impairment both fifth and sixth editions.
In addition, your diagnosis and resultant impairment rating is also corroborated by a medical specialist. Although you are fully qualified to render the impairment rating the Colossus algorithms will not recognize those impairment ratings unless rendered by a medical specialist. Thankfully we resolve that problem for you and strongly recommend you work with Spinal Analytics who has Dr. Peyster the neuroradiologist render the opinion in a revenue neutral scenario (it will cost you nothing).
The biggest challenge, along with the biggest win beyond the care of the patient is to get the lawyers to understand the value of this diagnosis and resultant whole person impairment rating. Your goal is to get the lawyer to understand the importance of this diagnosis regarding the prognosis and treatment plan of his client and the significance of the (the potentially high-value) whole person impairment it renders in relationship to the Colossus algorithms in determining their settlement offer. In addition should this go to a jury trial, once explained to the jury becomes another powerful demonstrative tool to visually explain the pathological basis for the persistent functional losses of your patients.
To help you further understand and explain x-ray digitization I am copying text from a law firm in Arkansas’s website that will help you gain perspective when communicating to both the legal community and your patients.
Digitized X-Rays (CRMA)
CRMA stands forComputerizedRadiographicMensurationAnalysis. Many times this process is referred to as “digitized x-rays.”
This is a test thatAnalyzes the angles and distances between bones in the spine uses aComputer and X-rays, which are a certain type ofRadiograph. The purpose of the test is to accurately assess damage to the spine.
Mensuration has been used by doctors for nearly 100 years to figure out when a patient’s spinal bones are misaligned due to injury, aging, or congenital defects. Mensuration compares a patient’s spine to a normal spine.
WHY USE CRMA?
CRMA is important to patients, doctors, and lawyers. For patients, it visually shows them where they are injured. It also helps them understand that common defenses to whiplash injuries are smokescreens invented by insurance companies. Finally, for patients it can explain the patterns of pain they experience:
For doctors, CRMA assists with a “differential diagnosis,” which is the process doctors use to rule out other sources of pain. Insurance companies like to blame other sources, such as “somatoform disorder,” “secondary gain,” and other buzzwords that really mean faking. CRMA objectively disproves faking. Since CRMA identifies the location and extent of permanent injuries, it helps the doctor decide on a treatment plan targeted at the injured area. It is also helpful for tracking changes in a patient’s condition and for deciding when to make referrals to pain management specialists, neurologists, or surgeons. Many doctors take repeat x-rays every 3-5 years to monitor their patients’ conditions.
For lawyers, CRMA provides objective, visual medical evidence of permanent injury. Simply put, CRMA helps patients prove their injuries in court. In order to introduce scientific evidence in court, it must be reliable and scientifically sound. Because CRMA uses decades-old mensuration techniques approved by the American Medical Association, or AMA, it is acceptable for use in court.
THE MEDICAL BASIS FOR CRMA
The mensuration method most commonly used today comes from the American Medical Association’s Guidelines for the Evaluation of Permanent Impairment (AMA Guides). It is the gold standard for impairment evaluation. For instance, the Arkansas Workers’ Compensation Commission requires use of the AMA Guides, and almost all other doctors recognize them as authoritative. The AMA Guides say that the only objective way to assess permanent spinal injury is to look for “motion segment alteration.” And the AMA Guides also say that it would be “rare” for a patient to have motion segment alteration without trauma:
AMA GUIDES, P. 379 (5TH ED. 2001)
...sometimes you need a method of analysis when injuries aren’t so obvious. That’s where the AMA Guides come in, and here’s what they say:
AMA GUIDES, P. 379 (5TH ED. 2001)
This statement is important for two reasons. First, it means that a doctor must take the right x-rays to determine whether motion segment alteration exists. Most of the time in the emergency room following a car wreck, ER doctors DON’T take these x-rays. Why not? The ER doc knows specifically what he’s looking for — broken bones — so he orders specific x-rays for that purpose. The doctor does NOT order the x-rays required by the AMA Guides because it requires forward and rear bending, which can make fractures in the neck too small to see on normal x-rays far worse. So, these bending x-rays simply aren't taken until the patient has had some time to heal. So, the tests to see if motion segment integrity is lost is performed later, because someone else treats that condition in a non-emergency situation. Also, a loss of motion segment integrity can be difficult to diagnose in the ER because tissue swelling restricts the movement necessary to obtain the proper bending x-rays required. Finally, the patient needs sufficient time to heal so that the true, permanent extent of the loss of motion segment integrity shows up.
The statement is important for another reason. It tells us that motion segment alteration CANNOT be diagnosed from a physical examination. So, without the proper x-rays, one just can’t say what the true extent of spinal injury is.
Once the x-rays are taken, the angles and distances between spinal bones are precisely measured and compared to a ‘normal’ spine. The American Medical Association determines what is normal…
CURRENT METHODS IN CRMA
Until the last 20 years or so, doctors performed mensuration by hand using x-rays, a light box, and a grease pencil. In the last 20 years, more doctors and clinics started using x-ray machines that take x-rays digitally, rather than with film (just like digital cameras have replaced film cameras).
With the computing power available today, it also made sense for doctors to use computers to perform mensuration calculations. The result is a faster, more accurate, and repeatable mensuration report. One doctor I’ve spoken to says the hand-mensuration method took about 15-30 minutes, but the computerized version takes a trained technician only 30 seconds! That’s a huge time saver.
CRMA has been tested by researchers, who have confirmed it is more accurate and repeatable than hand methods. For this reason, CRMA is generally accepted in evidence-based medicine as a reliable method of assessing spine damage. Most research articles published on the spine today use computerized mensuration tools.
CASE STUDY: CATCHING A DEFENSE DOCTOR CHEATING WITH CRMA
Below we show an example of mensuration performed by hand to show how errors can creep into the process. Can you tell what’s wrong with the image? Here’s a hint: it’s a small detail the doctor taking the x-ray overlooked.
Did you see the error? The patient’s chin isn’t touching her chest. That means the x-ray wasn’t taken in a full range of motion, which can spoil the accuracy of the result. The doctor who took the x-ray did so for an insurance company, and he had a reason to fudge the test. The doctor who performed the computerized report caught the error. And, the computerized report shows that the angle is so abnormal that a correct x-ray will likely show a loss of motion segment integrity.