Lawyers PI Program

#140

From the Desk of:
 Mark Studin DC, FASBE (C), DAAPM, DAAMLP
 
 “Clinical Correlation of Non-Disc Findings in the Narrative”
 
As you should know by now, in our world, the courts have accepted herniated discs as the main finding for soft tissue injuries and accept them as “serious injuries,” as defined by the courts. In some states, herniated disc is not even a player if there are no associated “functional loss” findings. Meaning, if there is bodily injury without your patient having their life interrupted by the injury, the lawyer has no case.
 
This is not the standard in every state, as some simply need bodily injury, yet even in those states without functional loss, the case is very weak for the lawyer. Making a case for the lawyer is not your job and never has been. As I have said before, we do not pander to the lawyer in any fashion. My job and yours is to resolve any diagnostic dilemmas that may present clinically and be extraordinarily good at documenting those findings.
 
One of the most frequently asked questions is how to handle the patient with no herniated disc in communicating bodily injury to the lawyer. That answer is very simple. You handle it just as you would for the patient with herniated disc. Nothing changes other than the reporting of the tests performed. However, how you triaged your patient will come under more intense scrutiny than you can imagine, without you present, if no MRI's were ordered because every lawyer looks for herniated discs in soft tissue injury cases. That is not a reason to do any tests, but you need to do it at the highest level of clinical excellence.
 
First, the reporting of the test in the narrative. When you report a test finding in your narrative, you must have a clinical rationale for performing the test, any test. I am NOT saying that you need to write a letter of medical necessity for that test as you would for the insurance companies. However, you must have a legally defensible rationale for that test. Rest assured, you will be cross-examined on that issue if you are expert for that case. As an example, you reported an EMG/NCV in your narrative. Do you have clinical findings of muscle weakness or radicular findings in your clinical examination? Do you have complaints of weakness or paresthesia in your history? These are valid clinical reasons to consider an EMG/NCV. It does not mean that when reporting the EMG/NCV you need to put why the test was done. Simply listing your examination findings is adequate. If you did not order the test and there are no radicular findings, be prepared by acquiring the clinical examination of the doctor who ordered the test so you can answer those questions on cross-examination.
 
This leads to another issue. If a test was done and you are not sure why, whether you agree or not, you are required by education law to gather all reports and tests from other doctors who have treated your patient in the past for similar conditions. The education department in most states, if not all, requires you to gather all past medical records on treating similar conditions even if tests were not done. You do not want to find yourself in a licensure hearing saying, “I didn’t know," or "I just didn’t do it." That is the shortest path to a career at Walmart!
 
Your narrative is broken into 4 parts:
 
Initial History: What your patient is experiencing as a result of the injury. This sets up your triage pattern of clinical evaluation and testing.
 
Physical Examination: Based on the history, an examination is performed and based upon those results, tests are ordered as clinically indicated to resolve any diagnostic dilemmas. Without the clinical findings, there are no “legally defensible” indications to order a test.
 
NOTE: Legally defensible is a phrase that means under scrutiny in any format, the fact pattern you present is 100% accurate with no gray areas. In other words, BS won’t cut it!
 
Test Results: As a result of the above clinical presentation, tests were performed and here is where you report what the results were. You do not explain the significance of any results, you simple list them.
 
Conclusion: It is here that you clinically correlate all 3 areas above and give your rationale in a conclusory format. This is also where you separate yourself from the pack. I have read such nonsense over the last few years in 1000’s of conclusions, as most doctors do not know what they are saying and and are inarticulate. You cannot quote research as that is hearsay. You cannot say things as it “might” or “may” or “should.” You need to only discuss what “is” about your patient as a result of the trauma and bodily injury. You must clinically correlate causality, bodily injury and persistent functional loss in your conclusion.
 
That is what makes you an expert in personal injury and as recently as last night, when I lectured to a group of lawyers in Florida, they certified that the above mentioned format is the best in the nation and it is yours. This is so good, you need to keep it a secret. A very close secret because your friend will tell someone and it will never stop, making you that much less unique in doing it right.