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Treating Physician – Asset or Liability?

Personal Injury 4
Karen was driving to work one day.  She took the same route she had taken every day for the past 3 years.  Unfortunately, on this particular morning, someone was not paying attention.  While stopped at a stop light, Karen was rear-ended.  The damage to her vehicle was substantial.  She initially felt a little dazed but by the time the police and paramedics showed up she told them that she “didn’t feel all that awful” and declined treatment and transportation to the ER.  Over the next few days, her neck became increasingly sore and painful and she eventually went to see her Family Physician who diagnosed her with “whiplash” and prescribed some muscle relaxers and an anti-inflammatory.  He told Karen to take it easy and she should feel better in a few days.  After several weeks of persistent neck pain, she made an appointment with a chiropractor.  The chiropractor examined Karen, took “x-rays” of her neck, and diagnosed her neck pain as an acute traumatic cervical sprain/strain resulting from “the car crash”.  The chiropractor treated her for several months.  Eventually he releases her saying that she has reached a pre-injury status.  Karen feels great, but now the Third Party insurance is claiming excessive utilization of care.  She decides to hire a Personal Injury Attorney.   The case eventually goes to litigation.  
Sound pretty familiar?   In Karen’s case, no one was debating who was at fault.  No one was debating that she was hurt.  No one was even debating that the treatment she received helped her.  The problem Karen and her Attorney had was created by the treating physician.  You see, during the Discovery Phase, the Defense had found out a few things about Karen.  Seems she had 4 previous car accidents.  She also had a pending Workers Compensation claim for a neck and shoulder injury.  Poor Karen also suffered from Lupus, which is an auto-immune disease that can present with musculoskeletal signs and symptoms.  Karen wasn’t trying to be deceptive, it’s simply that her chiropractor never asked her these questions when he took her history.  
Having had 4 previous accidents doesn't make you dishonest, it’s just really bad luck.  The Defense certainly tried to spin the situation to make her look “shady”.  So what were the problems?  To begin with, the chiropractor used a generic intake form for all his patients that was limited to demographic and primary complaint.  So what eventually happened at the deposition?
The doctor attributed her symptoms to “the car crash”… He was asked “which car crash?”  The doctor was then asked how it would change his opinion to know that Karen had had 4 previous car crashes.  Of course, his credibility is already shot at this point.  Next, the history of Lupus was introduced and again the doctor was asked if any of the Lupus etiology could present like neck pain, shoulder pain etc.?  The workers compensation claim introduced a pre-existing injury history.  Cervical radiographs were static and demonstrated degenerative joint and disc disease.  The doctor also could not explain how this was relevant to Karen’s case.  When the doctor released Karen, he said it was because she had attained “a pre-injury status.”  The doctor of course was asked how he made that determination and then how much of that determination was based upon the “pre-existing” work related injury.  He floundered and the case was settled for peanuts.  How could this case have been salvaged?  The obvious answer is identifying the mechanism of injury and having a system that is capable of capturing all the relevant information at the time of the initial encounter.  Let’s say that happened in this case and the treating doctor actually did elicit and discover the history of the past 4 MVCs, workers compensation claim, Lupus and Cervical DJD and DDD.
1. Apportionment:  The first matter is to establish intensity, frequency and distribution of current complaint and compare to before the most recent MVC.  A simple calculation can then be performed to derive the Apportionment Value attributable to the most recent MVC.  Care would then be limited to getting the patient back to that point only and there would be no issue.     
2. History of Lupus:  This would be identified as a complicating risk factor from the history.  Stress and trauma can trigger bouts of exacerbation.  Any worsening of her Lupus symptoms would be documented and co-managed with a rheumatologist.  
3. Pre-existing Degeneration. Cervical DJD and Cervical DDD.  These are radiographic findings.  They suggest a history of long term Mechanical Stress and Past Trauma.  Acknowledge that it is present and identify it is an additional risk factor for acute injury.  MVC patients should always have Dynamic Motion Radiographs ordered as well to evaluate for ligament instability.  CT scans may also be necessary to identify subtle spinal or vertebral endplate fractures.  
4. Comprehensive examinations are employed at regular intervals and patient’s progress measured and quantified.
Once the patient has attained a point of recovery EQUAL to the state they had prior to the most recent MVC, they are released from care.  Now, the Pre-Injury determination makes sense because we established the base line prior to beginning care.  There will and should obviously still be subjective complaints remaining, but the Third Party Carrier is only liable for the Worsening of Karen’s condition as opposed to restoration to optimal health.
In this alternate reality, Karen’s attorney is offered a reasonable settlement and   there is no basis or foundation for the defense to mount a smear attack or claim excessive utilization.  Which case file would you rather walk into the deposition with?
Dr. Martinez is certified by the Spine Institute of San Diego in crash biomechanics, crash reconstruction, kinematics and injury mechanisms.  
Dr.Welch is a ABIME Certified Independent Chiropractic Examiner.

Special Points of Interest

  • Missing elements of the History.
  • Pre-injury - How do you know when to say when?
  • Apportionment
  • How do pre-existing conditions fit into the picture?