Lawyers PI Program
 
“Building a PI Practice”

#6

 From the Desk of:

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

"Functional Loss & Admissibility"

Functional Loss:

Long gone are the days when attorneys only referred to the doctors that sent cases to them. Please don’t think that they don’t care, they do, however, they care more about winning a larger award than getting a case. In recent years, the court's requirements in virtually every state in the country require more than bodily injury. As you will learn later, this is not about the Colossus algorithms as those are purely settlement issues (you will learn about that in the 3rd section titled "Narratives"). For now, let's focus on the lawyers' court requirements and the focus of most lawyers initially. 


Imagine a herniated disc at C5-C6 with a myelopathy* and the attorney losing the case! The reason is “functional loss.” Unless the bodily damage has caused a loss of function, the lawyer will be hard pressed to have a significant case, and many times will lose because of no "functional loss." That is where you, the "right" and "credentialed" doctor, becomes critical to the lawyer winning and having a substantial case. 


It is essential to document functional loss for your patient in the medical records (how to do that will be discussed in a later consult). Your documentation must not only reflect the loss in medical terms, but in real life terms as well. Range of motion loss is one method recognized by the courts as “functional loss.” However, make it real. Discuss the loss in terms of what your patient cannot do in real life. “Mrs. Jones cannot stand in front of the sink for more than 3 minutes without pain. She can no longer work as a stenographer because when leaning over the steno machine her neck hurts too much. As a result, she was forced to quit her job as she couldn't do it as she had prior to the accident.” 


This is real and the courts weigh very heavily on this type of documented evidence. This is also what gives you the edge over other doctors in your community because they don’t know the courts standards. You now do for functional loss!!! Over the next few sessions, I will share with you more of what's needed for the attorney to prevail in an honest and ethical relationship.

  
Create a sample narrative that you would normally give an attorney, laminate it and put it in a 3-ring binder (you will learn more about this in section #5 titled, "Lawyers and Medical Specialists Meetings and Communication"). Call lawyers that you both know and don’t know and invite them to breakfast or lunch (we discussed that in an earlier session) or request a meeting with them as you have information that can help make their cases more valuable. This will get their attention and they will meet with you because you are not pleading for cases. You are going to them to show them how they can make more money by working with your office (without saying as much or really caring about the money, it's about the clinical findings and documenting it expertly). This has opened the doors to many referrals (100's) into my offices over the years. You don’t have to ask for the referral; by showing them how using your office will make them more money, they will stop counting how many cases you refer to them.


This is just one piece of the puzzle, although a big piece. Many more are just as big. Therefore, each piece of the puzzle makes you critical to the success of a case with the lawyer and makes you the "go to" doctor. Later, you will learn why the lawyers will WANT TO BYPASS medical specialists for you as the BEST solution for their business. 


Myelopathy: You need to know the difference between myelopathy and radiculopathy. Not just understand it when it is explained to you, but comprehend the intricacies of the findings if you are going to be taken seriously as a spinal expert. There are reasons that lawyers will bypass you for a medical specialist and this is just one example.


If you aren't certain or need more help clinically, I strongly urge you to take the PI Bootcamp found atwww.teachdoctors.com.


Later, we will discuss credentials and attaining clinical excellence as the core reason for your success in practice until you are "pushing up daisies!" You have only touched the surface...Keep reading!!!!


You will also learn everything you need to know about functional losses in the Narrative section of the consultations. 

 
Admissibility:

Source: http://en.wikipedia.org/wiki/Admissible_evidence 

Admissible evidence, in a court of law, is any testimonial, documentary, or tangible evidence that may be introduced to a fact finder—usually a judge or jury—in order to establish or to bolster a point put forth by a party to the proceeding. In order for evidence to be admissible, it must be relevant, without being prejudicial, and it must have some indicia of reliability.

Criteria

Relevance

For evidence to be relevant, it must tend to prove or disprove some fact that is at issue in the proceeding. However, if the utility of this evidence is outweighed by its tendency to cause the fact finder to disapprove of the party it is introduced against for some unrelated reason, it will not be admissible. Furthermore, certain public-policy considerations bar the admission of otherwise relevant evidence.

Reliability

For evidence to be reliable enough to be admitted, the party proffering the evidence must be able to show that the source of the evidence makes it so. If the evidence is in the form of witness testimony, the party introducing the evidence must lay the groundwork for the credibility of the witness, and his knowledge of the things to which he attests. Hearsay is generally barred for its lack of reliability. If the evidence is documentary, the party proffering the evidence must be able to show that it is authentic, and must be able to demonstrate the chain of custody from the original author to the present holder. The trial judge performs a "gate keeping" role in excluding unreliable testimony. The United States Supreme Court first addressed the reliability requirement for experts in the landmark case Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993). The Court laid out four non-exclusive factors that trial courts may consider when evaluating scientific expert reliability: (1) whether scientific evidence has been tested and the methodology with which it has been tested; (2) whether the evidence has been subjected to peer review or publication; (3) whether a potential rate of error is known; and (4) whether the evidence is generally accepted in the scientific community. Id. at 592-94. Kumho Tire Co., Ltd. v. Carmichael later extended the Daubert analysis to include all expert testimony. 526 U.S. 137 (1999).

 

Dr. Smith and Dr. Jones are located 3 miles apart and each gets a new patient from the same accident. Both patients were in a rear-end collision and each has a herniated disc at C5-C6 compressing the nerve root on the left. Both patients are represented by the same lawyer and yet, after that accident, Mr. Lawyer will only refer to Dr. Jones. Armed with this information, Dr. Smith takes Mr. Lawyer out for dinner, gives him theater tickets and sends him candy regularly. Mr. Lawyer does remember to thank him and sends him a client or two, yet Dr. Jones get the other 20 without spending a dime. Why?

 

Although both had the same results, Dr. Jones reported in his narrative that he had personally reviewed the MRI films and rendered the result he reported on. Dr. Smith wrote that he reviewed the report of Dr. Schwartz, the radiologist, who found herniated discs. This goes toward admissibility. In many states, the reports from another doctor are inadmissible because they don't give the opposing counsel an opportunity to cross-examine the expert, rendering them unusable in court and lowering the value when the attorney attempts to settle.

 

I realized 20 years ago that I needed to understand and be able to interpret MRI's. However, there was no formal education available in the early 1990's for chiropractors. As a result, I spent 100's of hours at the State University of New York at Stony Brook, Department of Neuroradiology, studying and auditing with the medical radiology and neuroradiology students and professors, affording me the ability to interpret spinal MRI films. Since then, I have read many thousands of MRI films and have come to realize, through my own experience and through research findings, such as those by Lurie, Doman, Spratt, Tosteson, and Weinstein (2009), that general radiologists have a 42.2% error rate. As a result, I am a big proponent of doctors of chiropractic reading their own MRI films and not abdicating that responsibility to others, as we are the ones delivering the high velocity thrusts into the spine, not the radiologists.

As previously stated, this is a critical component of admissibility as well as clinical excellence. Thankfully, today we can take formal course work in MRI Spine Interpretation (www.TeachDoctors.com). Understand that simply being able to read the film will not make you expert; you need the formal credentials in order to be certified as expert. If you have those credentials, great, if not...get them! 

 

Beyond the herniated disc or whatever the bodily injury is, there needs to be functional loss. In virtually every state, there is a requirement to have injured something and then not be able to do something(s) as a result. On my last evaluation, before trial or in my narrative (topic for another session), I report on a form I have the patient fill out in his/her own handwriting that he/she signs (very important). It lists 3 levels of functional loss: personal, social, and work. I have the patient explain, in real life terms, what he/she can’t do for each.


There are 2 types of functional loss: Loss of enjoyment of life (permanent) and duties under duress (what causes exacerbations). These will be explained in detail in the Narratives section of the consultations as they are critical to the Colossus process.


Remember your mantra, "Clinically correlating causality, bodily injury and persistent functional loss." Without the latter, in most states, lawyers have a very difficult time getting the bodily injury certified as significant and the case might never be admitted due to a lack of standing. Claims examiners, judges and juries relate to, “I can’t lift my arm, so I can’t hold a wrench and as a result of the accident...” a lot better than, “Mrs. Jones has a limitation in range of motion in her right arm." The following is a sample from one of my patients:

 

Personal Limitations: “I have become very agitated. I can no longer pick up my infant daughter. When I wake up in the morning, I have neck and back pain. I can’t reach over my head or stretch my legs. There are times when I feel like I’m being stabbed in the back. I am also having difficulty during sexual relations due to the pain in my neck and back.”

 

Social Limitations: “When I go to the movies or concerts, I can’t enjoy them because I can’t sit for long periods of time without pain. I try to play touch football, as I did prior to the accident, but I have difficulty due to my neck and back pain and limitations with my arm. I have a fear when driving in the car. Whenever I hear a horn or screeching brakes, I am afraid I’m going to get hit again.”

  

Work Limitations: “I am an automobile mechanic. I can’t lean over the car for a long period of time to do repairs. When I use my right hand to hold tools for a long period of time, I get pain that shoots up to my neck and down to my lower back. I have to stop from time to time and rest, so it’s hard to finish repairs in a timely manner. I have also changed my job from a full-time mechanic to a part-time mechanic and a part-time service writer, reducing my pay.”

 

This goes to the admissibility of the true nature of the problem that will allow the lawyer to utilize the patient’s account of the extent of the injury because you reported it in a medical document. Often, simply a lawyer's accounting of a history cannot be admitted into evidence, as a lawyer is not a qualified healthcare professional expert, but you are!

 

Range of motion is also a nationally accepted loss of function that should be done on every patient, every 30 days of active care. Medicare guidelines state that the patient should be evaluated every 30 days. If you adhere to Medicare guidelines, even in personal injury, you will be on safe ground. When reporting range of motion, unless you utilize a digital inclinometer, report it as normal or abnormal. If you assign a number in degrees, you leave yourself exposed to an attorney cross-examining you and refuting what your results are. In fact, the AMA reports in their textbook,Guides to the Evaluation of Permanent Impairment, 5th Edition, on pages 398-400, that inclinometer studies are the standard for range of motion and should have 3 additional readings within 10% of each other to be valid. If you do not have an inclinometer, then simply report the range of motion to be less than normal and you will be on sure ground. BUT...if you do not have a computerized digital inclinometer, buy a handheld one that starts as low as $150 from many national suppliers.

 

Find out if your state has a requirement for the attorney to submit the medical reports in affidavit format. If so, put the report in affidavit format. It’s only a paragraph and to get the accurate language, ask a local attorney because each state is different.

 

You should also finish up each report with the following language:

“It is my opinion, within a reasonable degree of chiropractic/medical certainty, that the objective and quantitative findings, as described above, have caused permanent and consequential limitations which are a direct result of the injury caused on 1/21/06.”

 


References
 
1. Lurie, J. D., Doman, D. M., Spratt, K. F., Tosteson, A. N., & Weinstein, J. N. (2009). Magnetic resonance imaging interpretation in patients with symptomatic lumbar spine disc herniations: Comparison of clinician and radiologist readings. Spine, 34(7), 701–705