Lawyers PI Program
 
“Building a PI Practice”

#11

 From the Desk of:

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


"Pre-Existing Conditions"

   

When dealing with the injured we often see arthritic degeneration as a risk factor. However, it usually doesn’t hamper our ability to treat our patients. In the medical-legal world, it is a huge problem that is often used against a patient and his/her legal representative unless you, the doctor, explains the significance in relation to the overall condition.

 

Osteoarthritis is the degeneration of a joint due to instability, overuse, wear and tear over time, etc. I don’t need to explain the mechanics of OA as most of you understand it better than I do. However, in the legal world, it is mostly misunderstood.

 

When explaining it to a lawyer, I tell them, “If you take a green twig off a tree and bend it, fold it and then jump on it, more likely than not when you pick it up again, it will spring back to an almost straight position because it is very pliable and healthy. If you deprive that same twig of water for 3 weeks, is it more or less pliable? Will it break with less pressure or more? The answer is clear. The twig without water will break with less pressure because it is more brittle and less pliable. The arthritic joint is the same. Over time in the unstable joint, calcium will stream from the adjacent bones into the supportive ligaments (in the spine, it is the anterior or posterior longitudinal ligaments) and create a less pliable joint. This means that with trauma, the joint is more susceptible to greater bodily injury with less trauma.

 

To give another example, who is more likely to be injured in a 30 mph rear end collision while stopped? A 93-year-old man that is 78 lbs, 3 foot 9 inches and hunched over due to osteoarthritis or a 25-year-old man, weighing 200 lbs and having rippling muscles? The answer again is clear. It is the elderly man because his supporting structure can’t withstand the trauma as a result of the loss of support for the joints.

 

In the personal injury world, the lawyer will have a very difficult time prevailing in a case with pre-existing arthritic degeneration in his/her client. The opposing side will argue that because of the arthritic joint, the injury was pre-existing and the case will be more difficult.

 

The problem with the argument of arthritis being pre-existing and therefore the injury being pre-existing, is simple. It’s not the truth. The truth is, because there is arthritis, the victim is now more susceptible to greater bodily damage with less trauma. The arthritis, although pre-existing, is a risk factor which escalates the problem, not negates it.

 

This is a very important issue to discuss with lawyers. You will certainly get their attention. However, despite being provided with this knowledge, the lawyers still have problems because they can only argue what is on paper. Therefore, you need to add a “pre-existing” paragraph to your narrative, if clinically indicated. This will acknowledge that your patient had a pre-existing problem and the only relationship to the current injury is that it made it worse.

 

The following language should be used in a separate paragraph following either the x-ray or MRI reading in your narrative. It should not be in your routine evaluation reports, again, if clinically indicated:

 

Pre-Existing Condition

Mr. McDonald has a pre-existing arthritic degenerative (NAME OF JOINT) that is not a result of this injury. However, the arthritic joint increased the susceptibility of the joint to more damage with less trauma.

 

By adding this paragraph, you will take the issue of pre-existing arthritic degeneration off the table for the lawyer. This will allow him/her to argue the truth about the injuries of his/her client and hopefully prevail based upon physiology and not legal jargon based on false impressions.

 

Again, make sure that the lawyer you are working with is aware that you handle pre-existing arthritic degeneration for his/her clients. This is a HUGE issue that is facing most attorneys nationwide.