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Dr. Arthur Croft Reviews David Ball on Damages and Reptile

The following is an article by leading spinal injury researcher, Dr. Arthur Croft, on David Ball on Damages, and Reptile, and how these books impact physician's narrative reports in personal injury cases.

Medicolegal Gems: 7 Ways the Doctor's Report Can Favorably Influence the 
Outcome. Are Your Reports in Sync?
 
     by Arthur C. Croft, Ph.D.(c), D.C., M.Sc., M.P.H., F.A.C.O.
Let me begin by saying that this is not a book report, nor am I recommending readers to go out and read law books. My intro here is merely to provide, as lawyers would say, foundation. Although few doctors would recognize the name, one of the most influential experts in the legal arena today is 
David Ball, Ph.D
.
He is the trial lawyers' éminence grise: the courtroom Karl Rove. Wunderkind. He has authored two of the largest selling law books in recent history. 
(1). The first of these is 
David Ball on Damages 
(2). 
The most recent is Reptile 
For the first dozen or so years of practice, I never would read books written for lawyers, assuming that what lawyers need to know and what I need to know probably shared little territory. But a few years ago I met a trial attorney named

Rick Friedman.  He's another huge name among trial lawyers these days. He gave me his latest best-seller, Polarizing the Case (3), and I thanked him, not expecting to actually read it. But then, as I was leaving for the airport, I decided it would make for good light reading on my fishing trip to Baja California. Turns out I could not put the book down. I kept thinking to myself, this is absolutely relevant to doctors, it just wasn't written for them. You simply have to be thinking tangentially as you read advice from a trial lawyer to other lawyers.

Then, having heard so much kvelling from trial lawyers over this book David Ball on Damages, I was starting to feel like the only guy who never saw Star Wars or Gone With The Wind (which I actually have still never seen), so I got David Ball's book and read it. And, as with Rick Friedman's books, although written for lawyers, the text should be quite revealing to doctors. So, with that foundation having been laid, the following relevant advice to doctors can be extracted from those books.
In his book, David Ball points out the features of the case that either contribute to and subtract from the size of jury awards. While it is not the physician's duty or responsibility to consider legal issues, per se, and certainly we needn't worry about such a crass subject as monetary awards, one should still be mindful that in nearly every instance where a third party has liability, that entity will do what they can to minimize the loss or insulate themselves from responsibility. Interestingly, when they use the term loss, it refers to their loss, not the plaintiff's, and this gives some indication as to their priorities.

Consequently, the physician has the responsibility of providing, at minimum, the basis for a ground-leveling plaintiff presentation. In other words, the defense is likely to seize upon an item the treating physician has not discussed and use it unfairly to mischaracterize the patient's claims for injury, mischaracterize her motivations, or portray her as a malingerer. The physician's sober and objective attention to these details by way of documentation will mitigate or obviate this unfair tactic and tend to level the playing field, providing the plaintiff with a reasonable basis for her lawsuit. At the same time, the physician can remain neutral and will not be perceived as a patient advocate.

Thus, while a physician's primary role in these cases is healthcare delivery, his or her secondary role - at least in selected cases - is in providing an objective assessment of the injury, providing an opinion as to causation, and making a realistic prognostication for the need for future care, discussing any potential untoward downstream effects that are likely. Having said all of that, let's now look at some of these issues.

The Gems

We are told that juries have a number of biases. These are routinely exploited by defense attorneys. As you read them and consider them, you'll realize that much of this would probably have been prevented had the physician specifically addressed these issues in his or her report.

Issue: Money can't make the pain go away. It can't fix the problem.
The idea here is that a large settlement above and beyond the medical costs will reward the person, naturally enough, but will it really fix anything?
Jurors like to feel that they are doing something important, rather than just deciding the issues on some small lawsuit. They don't award much money in these cases unless they perceive that in doing so they will be helping the plaintiff.
If you believe that the patient would benefit from more extensive intervention or if you believe the patient will benefit from vocational rehabilitation / retraining, surgery at some point, etc., this should be noted in your final report because it goes to the issue here of potentially fixing the problem.

Issue: The plaintiff didn't make all efforts to get well.  "If it had been me, . . ."
None of us want to think of ourselves becoming sick or disabled. We intellectually reject the idea at conscious and subconscious levels. We like to believe that we are survivors; that we can weather the harshest storm and survive even dire circumstances. Jurors, being representatives of typical people, like you and me, are likely to be a little judgemental. If it appears that the plaintiff did not make a sufficient effort to rehabilitate herself or explore all avenues of reasonable intervention, it casts her in a bad light. It could mean she's not sufficiently motivated, or it could mean that she weren't really hurt in the first place.

Issues: Discussions about alternative care, second opinions, or consultations with other practitioners, along with descriptions of any special efforts made at self-rehabilitation should be documented.
Did the patient buy a new bed at your recommendation? Did she joint a health spa? Has she changed her lifting requirements at work in order to remain on the job and contribute to her family's income?
Jurors appreciate a fighter. This is an important corollary to the previous gem. It is not uncommon that people who are already challenged sufficiently with their hectic lifestyle and family responsibilities, become further burdened when they have a serious injury. On top of every other daily requirement, they now have the added challenge of constant pain and/or some level of dysfunction. They may not be getting enough sleep and this typically exacerbates the physical and psychological burden. Many patients will endure these challenges with quiet determination and that stoicism is a trait that is greatly admired. In contrast, when the plaintiff appears to be a whiner and a complainer - especially if it appears she has not really taken much responsibility in regard to her own recovery-jurors will not be very sympathetic. Missed doctor visits, failing to follow through on referrals to other practitioners or therapists, failing to do those home exercises you prescribed, or to lose weight as you urged are signs that she didn't take her condition seriously.

On the other hand, those family and work responsibilities do sometimes take precedence, and missed appointments may result. A rational and objective discussion of the reasons for missed visits may be in order. Likewise, it is not uncommon for injured persons to initially assume they will recover from their whiplash symptoms, since most of the strains and sprains in life are self-limiting. Many victims will self - medicate and tough it out for weeks because of this expectation. This is the fighter spirit in action. When they eventually throw in the towel and consult with you it may be a couple of weeks since their injury. The defense argument will be that the reason no initial care was sought was because there was, in fact, no injury. It was only after the plaintiff saw the lawyer's advertisement that the thought of a lawsuit occurred to her. This is why it is always important to obtain a solid history timeline from the injury to the first visit.

Issue: The plaintiff 's claimed injuries are not objectified by testing. Maybe 
she's just grabbing for the brass ring. 

This one is not just in your ballpark, it's right in your face. First and foremost, contemporaneous SOAP notes should reflect not only the patient's level of pain, but also her functionality. If she's working under duress or if she has limited work capacity, the record should reflect that unambiguously. If recreational activities or home responsibilities have been curtailed or have become impossible, this should also be noted. As for the objectification issue, remember that the clinical examination by a trained and experienced clinician does largely objectify the subjective complaints most of the time when the claimant has a real injury. 
Radiographs and other imaging studies-including in some cases MRI, CT, or SPECT-will provide further objective evidence of injury in most moderate level and above injuries. Flexion and extension plain views should be included in the cervical radiographic study in any case of acceleration injury.
Issue: Is it possible the plaintiff is malingering? The insurance "IME" doctor 
seemed to think so.
I always urge treating practitioners to get these defense medical reports and rebut them in a clear-headed, non ad hominen manner. Your rebuttal would typically deal with the basis of the other examiner's opinions, theories, and methods.
Did the doctor misstate some of the plaintiff's complaints?

Did the doctor allude to the 6-12 week recovery window for whiplash; the one for which there is virtually zero published evidence?

Did the doctor make erroneous statements concerning the risk for injury based on the perceived crash severity? Here again, there is an void of evidence. A comprehensive meta-analysis of both the biomedical and engineering literature reaching back as far as 1970 failed to demonstrate any clear relationship between crash severity and injury risk or injury severity within the context of collisions below 25 mph or so. (4)
Aside from this rebuttal chore, have you attempted to determine whether there might be any overlapping depression or posttraumatic stress disorder that might confound the clinical picture? Have you assessed the patient yourself for any signs of malingering? You should. There are a number easily administered questionnaires that now have high levels of validation and wide general acceptance.
Issue: The harm was minimal.

When the medical bills are low, juries tend to award very little money for non-economic damages. Because jurors are not usually told how much to award for pain and suffering, they tend to anchor on the only tangible information they have-the medical bills. They then will award half the medical bills, or the same amount, or twice, etc. I suspect this may be one reason why some lawyers are not alarmed when patients undergo a series of three epidural steroid injections for $14,000, even though they rarely provide permanent relief in trauma cases.

If the patient did not need a lot of medical care, I think this is a good thing for everybody concerned and may be largely a result of the patient's bootstrapping self-sufficiency and stoic fighting spirit. But if they have continuing discomfort or dysfunction, this should be carefully explained in the final report. 

Issue: The plaintiff's injuries are healed (or the surgery fixed the problem) so what's the big deal?
I recently testified in a trial in which the plaintiff had had a cervical spine fusion. I was brought in as a biomechanical expert to address the defense contentions that the injury-as seen directly by the surgeon-was not caused by the collision. I was able to convince the jury that the injury was the result of the collision, and they awarded the man $100,000. They later mentioned that they probably would have awarded more, but, since he was back at work and not getting any regular medical care, they assumed he was fairly asymptomatic. The fact is, however, that I spoke with him in the hallway just before the trial and he told me had was always very stiff, had limited flexion, and took a lot of ibuprofen. He was a fighter too.
He'd had a prior fusion at C5-6 by the same surgeon five years earlier, so now he was fused from C4-6. Field practitioners should understand that surgeons generally are dismissive of their patients who have a good outcome, viewing their handiwork as the final fix. They don't like to discuss surgery in terms of untoward effects. Jurors also tend to view surgery as a definitive solution; like having a tooth repaired at the dentist's office. But surgical fusion of the spine is anything but a definitive or final solution. It will increase the likelihood for herniation or other new disease at the level above, and is associated with an accelerated degenerative state. There is also always the potential for screw migration or other downstream effect and the generally more vulnerable state should a future trauma occur.

In Summary

Although the tactics employed by third party auto insurers have become progressively more draconian and bare knuckled in recent years, these desperate defense strategies can easily be unmasked as a string of interconnecting non sequiturs, exclusive reliance on junk science, and appeals to nonexistent outcome evidence. Personal injury practice, on the other hand, has become an important field of practice in terms of practice growth.

There is more good news. Since my treatment guidelines for whiplash have been integrated into the ICA's Whiplash Guidelines, which are now installed on the National Guidelines Clearinghouse website, insurers are now expecting chiropractors to follow those guidelines. Spinal manipulation, meanwhile, has been definitively elevated to a the highest level position of proven effectiveness for neck pain, largely outperforming all other forms of healthcare in large-scale, evidence-based meta-analyses (5). This confirms two earlier trials which demonstrated the superiority of chiropractic treatment over medical or acupuncture management for chronic spinal pain (6,7). It has also been rather definitively demonstrated that the risk for stroke from chiropractic manipulation is negligible, being comparable to the risk of stroke from visiting a family physician (8). The translation is this: the current scientific best evidence is unambiguous. For the most common forms of spinal pain, nothing outperforms chiropractic intervention.

So I encourage practitioners who have been shy in engaging this business out of fear or distaste for the litigation side to jump right in and contribute to the public welfare and public health. There are very effective solutions to virtually every apparent barrier or obstacle erected (9).
References
1. Ball D. David Ball on Damages: the Essential Update. 2nd ed. Louisville: National Institute for Trial Advocacy; 2005.
2. Ball D, Keenan D. Reptile: The 2009 Manual of The Plaintiff's Revolution. New York: Balloon Press; 2009.
3. Friedman R. Polarizing the Case. Portland: Trial Guides; 2007.
4. Croft AC, Freeman MD. Correlating crash severity with injury risk, injury severity, and long-term symptoms in low velocity motor vehicle collisions. Medical Science Monitor. 2005;11(10):RA316-321.
5. Gross AR, Goldsmith C, Hoving JL, et al. Cervical Overview Group. Conservative management of mechanical neck disorders: a systematic review. J Rheumatol. 2007;34(3):1083-1102.
6. Giles LGF, Muller R. Chronic spine pain: a randomized clinical trial comparing medication, acupuncture, and spinal manipulation. Spine 2003;28(14):1490-1502.
7. Muller R, Giles LG. Long-term follow-up of a randomized clinical trial assessing the efficacy of medication, acupuncture, and spinal manipulation for chronic mechanical spinal pain syndromes. J Manipulative Physiol Ther. 2005;28(1):3-11.
8. Cassidy JD, Boyle E, Cote P, et al. Risk of vertebrobasilar stroke and chiropractic care: results of a population-based case-control and case-crossover study. Spine. 2008;33(45):S176-S183.
9. Croft AC. Whiplash and Mild Traumatic Brain Injuries: a Guide for Patients and Practitioners. San Diego: SRISD Press; 2009.
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