This word is the most important piece of advice that you will get in making your work admissible to the legal community. Admissibility is the single most important component in becoming a desirable referral source for a lawyer, as long as your documentation is complete.
As I have said previously to many of you, the worst thing you can do is get the referral and then be like everyone else in the medical community so that you never get a referral from that lawyer again. I call this the “one and done” referral. This is where you get one referral and the attorney will never work with you again. In order to prevent this from happening, make sure that the “AND” is clearly documented.
Is it enough to diagnose a herniated disc through MRI? Is it enough to have a positive EMG/NCV? The answer is no. In many states, the bodily damage alone will not enable the lawyer to prevail and in some states, the lawyer will prevail, but to what extent? In order for the lawyer to prevail and have a significant case, there must be loss of bodily function. That is what the “AND” is. The patient has bodily damage “and” as a result cannot…
To determine loss of function, range of motion is the accepted court standard in virtually every state in the country. Previously, I shared with you that you should do a visual analysis and list the range of motion as normal, restricted or restricted with pain. A visual analysis to render an exact degree of loss is considered unacceptable by the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fifth Edition. The text is considered the authority on functional loss with respect to range of motion in the country.
Beyond the visual analysis, if there is a loss of range of motion, it is then recommended to utilize an inclinometer. I recommend a J-Tech Computerized Digital Inclinometer, although there are many good ones in use. To purchase one and get a discount, send me an e-mail. They give me a commission of which I will pass on to you as a savings towards purchase.
Every doctor utilizes the range of motion to document functional loss and the lawyer will be very appreciative if you accurately document the loss of function both at the beginning and at the end of care. However, that is not enough. Make loss of function REAL AND IN LIVING COLOR, NOT BLACK AND WHITE.
I have had numerous court rulings for my patients where the judge quotes my narrative verbatim regarding the “real life” description of the functional loss as the reason my patient and his/her attorney prevail in the case. Make it real and reflective of everyday life in a way that a lay person can relate to. That will set you apart from what the rest of the medical community provides. To get an advantage over the next doctor is much too easy.
What is it that your patient can’t do? Work, bowl, dance, clean the house, have sex or go for a work? The answer is all of the above. Let’s look at each individual component. It gets even easier!
First, some advice from a non-lawyer…me. Have the patient, in his/her own handwriting, write what his/her functional losses are. There was a case in which the insurance company was able to get a verdict in its favor based upon the ruling that it was because of the doctor’s report that the insurance company had paid the patient’s disability claim. Therefore, the doctor had to repay the amount given to the patient. The moral of the story, have the patient write it out in his/her own handwriting and then have him/her sign it. At the very least, do not certify any level of disability without the patient's signature on the statement.
There are three components in functional loss and although you should never put words in the mouths of your patients, you have to fully explain to them what you are expecting to be written with regard to their functional losses. Personally, my policy is not to include what they write in my narrative if it does not reflect their bodily injuries.
3 Types of funtional loss:
1. Personal Loss
2. Social Loss
3. Work Loss
Personal Loss: What can the person no longer do personally as a result of the injury and ensuing bodily damage? This relates to all personal tasks such as household chores in and out of the house, personal grooming, shopping, hobbies and most importantly, sexual difficulties, as a result of the injury. Why sex? The answer is, it is real and everyone can relate to a person having a basic human function negatively affected. Everyone can relate to it. It is not necessary to get graphic; it is simply enough for the person to state that, “...as a result of the injury, I am experiencing sexual difficulties.”
Social Loss: What can the person no longer do socially as a result of the injury and ensuing bodily damage? What are social activities? Dancing, going for walks, playing with their children or pets, gardening, doing hobbies, going for drives, going to the movies, dancing, playing sports, exercising, etc.
Work Loss: What can the person no longer do occupationally as a result of the injury and ensuing bodily damage? Did he/she have to change jobs, modify his/her existing job, require retraining for a new job, take a pay cut as a result of not being able to do a job, perform his/her job in pain, get reprimanded as a result of now doing a poor job? Anything that pertains to a change in work from his/her pre-injury ability needs to be documented. These statements need to be typed, put in “quotes,” and added to the end of the report to summarize in living color what functional losses your patient has suffered in “real life terms.”
When you meet with lawyers in your breakfast meeting, explain to them what is wrong with their patients and make a “big deal” over functional loss. This, along with your understanding of the necessity to refer out for an MRI when clinically necessary, will set you apart from the rest of the medical community. Once the lawyer understands that YOU UNDERSTAND THEIR NEEDS, you will never have to ask for a referral again. They will come.