Handling Spinal Injury Cases - Sessions 3 and 4
Posted by Alex Miller on Feb 17, 2021
Resources for Spinal Injury Lawyers
As America's leading litigation publisher, Trial Guides knows that the most successful personal injury attorneys focus on mastering the medicine in their practice area. To support lawyers in improving their skills in handling spinal injury cases, Trial Guides created the most comprehensive and advanced educational series in the legal profession for spinal injury lawyers. This educational series will help lawyers achieve better insurance settlements, arbitration awards, and trial verdicts for their spinal injury claims.
Trial Guides founder, Aaron DeShaw, who obtained a Doctorate of Chiropractic before his career as a trial lawyer, created this educational course for lawyers and law firm staff including legal assistants, pre-litigation paralegals and trial paralegals. The course is aimed at people in the legal industry without health care training, and covers spinal injury topics ranging from basic to moderate complexity. While the course was not intended for health care providers the live sessions have been attended by doctors and medical device researchers.
The spinal injury lawyer webinar series helps personal injury law firms better understand the types of injuries that can occur in many personal injury practice areas including car accident, trucking accident, workers compensation, premises liability (including slip and fall), product liability / defective products, construction defect, medical malpractice or other type of accident where clients suffered a spinal injury.
In Spinal Injury Cases Session 3, DeShaw pieces together several important parts of spinal injury cases. The first is the impact of different types of providers. He focuses on new information released by the Insurance Research Council showing that Doctors of Chiropractic are now the most common treating physicians in motor vehicle cases. DeShaw provides a lengthy discussion about the scope of education of Doctors of Chiropractic (D.C.), Medical Doctors (M.D.), Doctors of Osteopathy (D.O.), Doctors of Naturopathy (N.D.), Doctors of Physical Therapy (D.PT.) and others in terms of their classroom instruction and internship hours. This helps lawyers deal with settlement negotiations with insurers on personal injury claims, prepare for motions to strike or limit certain providers, and how to quality these expert witnesses using factual information about their educational background.
A substantial portion of Session 3 addressed the diagnostic imaging in spinal injury cases, including which types of imaging was most beneficial for the diagnosis of certain types of injuries. This included a discussion of
Cervical (Davis Series vs. 3 view)
Lateral Flexion / Extension radiographs of the Cervical Spine
What studies should be done, particularly in the cervical spine?
What views are not commonly done in static radiographs, and what is the effect?
What can you see and not see on radiographs?
DMX (Digital Motion x-Ray) and Video Fluoroscopy
What is the benefits of this evaluation?
What is the most recent medical literature supporting DMX / Video Fluoroscopy?
When is DMX/Video Fluoroscopy best used
What can you see with MRI?
MRI resolution: Open MRI vs. 1.5T, vs. 3T MRI
MRI Slice Thickness
Limitations of MRI
Is a standard Cervical MRI able to image upper cervical ligament injuries?
Tips on achieving accurate findings
Flexion / Extension MRI
Weighted / Compressed MRI
Fonar MRI benefits and detriments
Is there a benefit to contrast in Internal Disc Derangement Cases?
What can you see?
Pros and Cons versus MRI
The procedure and the impact on adjustors and the jury
The value of discogram in Internal Disc Derangement cases where there is negative x-ray, MRI and / or CT
Patterns of internal disc damage that will result in pain but will not result in a disc bulge or disc herniation
Modified Dallas Rating system for intervertebral disc injuries
Why run a bone scan?
Dr. DeShaw returns to the topic of disc injury from Spinal Injury Cases Session II to discuss the topic of Internal Disc Derangement, the work of leading spinal anatomist Nicolai Bogduk, the discovery of the intradiscal nerve, and why disc damage without a disc bulge or disc herniation can create chronic pain. He also expands upon concept of post injury “Hyperinnervation Supersensitivity,” discussing recent research supporting that the disc physiology (structure) and biochemistry both change after trauma, resulting in an overproliferation of nerves in deeper structures of the disc than is normal, resulting in chronic pain. This supports the scientific literature discussed in Spinal Injury Cases Session II, that has demonstrated in over 90 peer reviewed studies that people have chronic pain after spinal injuries.
DeShaw then turns to the topic of the AMA Guides to the Evaluation of Permanent Impairment Ratings, and the impact in personal injury settlements. He provides a discussion about how permanent impairment impacts both non-economic / general damages, as well as economic / specific damages in cases. He addresses the preliminary matter that the 5th Edition remains the standard of care that is used by the insurance industry and should be admissible in trials of all kinds – not just workers compensation claims. DeShaw discusses the in depth evaluation of the AMA Guides to the Evaluation of Permanent Impairment 6th Edition by Iowa Workers Compensation division, including inverviews of those at the AMA and the primary / sole author of the text and found it to be significantly erred and rejected its adoption. (See individual reports by Iowa AMA Guides Task Force the most notable are those by Kuhnlein, and Parrish-Sams.) As to the methods used in the 5th Edition, DeShaw discusses the two methods of evaluation of permanent impairment in spinal injury cases – notably the “DRE” method versus the Range of Motion method. He walks lawyers through the flow chart in the AMA Guides to discuss when one method should be used as opposed to the other. DeShaw notes that lawyers should be watching for defense doctors to claim there is no impairment when no evaluation was done, defense doctor’s use the wrong method of determining impairment, or their failure to follow the AMA protocol for consistency in range of motion measurements. DeShaw finishes this section with a discussion of how AMA permanent impairment ratings impact claim evaluation software systems such as Colossus in their evaluation of non-economic damages in spinal injury cases. Lastly, he notes that permanent impairment often carries with it economic damages due to diminished earning capacity as a result of decreased earnings, lower likelihood of promotion, and a shortened work life duration. Use of an economist and voc rehab expert is suggested.
DeShaw spends time during this session addressing the common defense that the client’s spine was “degenerating” or that they had a disease of the spine before their injury. DeShaw discusses that “degenerative joint disease” and “degenerative disc disease” are forms of osteoarthritis common in the human spine and that medical literature supports that without trauma these conditions are not expected to be painful. Citations are provided to the work of leading spinal anatomist Nicolai Bogduk and his two books on the cervical and lumbar spine that provide compelling quotes to fight this defense from insurance adjustors and defense doctors.
Lastly, DeShaw provides a cursory overview of reflexes, muscle testing and dermatome sensory testing that doctors use to cross reference nerve root involvement (commonly seen in disc herniation cases. The spinal nerve roots (and correlated testing) covered include C5, C6, C7, C8, L4, L5, and S1.
Live attendees rated this program a 4.89/5.0. 100% of participants found this program to have significant current professional content to their practice.
In Spinal Injury Cases Session 4, Aaron DeShaw turns to important aspects of handling spinal injury cases in Pre-Litigation including writing the most effective demand letters for spinal injury cases. Given DeShaw’s reputation for creating the only known systematic method for writing demand letters and claim forms based on his pioneering work on the Colossus claim system (covered in detail in Writing Demand Letters), this gives spinal injury lawyers important insights into how to maximize claim settlements by providing insurers the information they need to evaluate a claim.
Before addressing the demand letter itself, DeShaw starts with a discussion about the importance of “setting reserves” so that the lawyer and their client gets an adjustor assigned to the case with sufficient authority to settle for a fair value, and ensures that money is set aside correctly for the claim.
DeShaw discusses that existing models for expected treatment in the insurance industry fail to acknowledge an injury grading system that provides less treatment for less serious injuries, and more treatment for more significant injuries. Common insurer expectations for treatment are discussed. Medical bill review software is discussed – a topic seldom or never addressed in CLEs despite its significant impact on economic damage evaluations that often result in offers lower than the full medical bills.
Preparation for the demand package is discussed including medical records, medical bills and specialty reports.
DeShaw then turns to using the best format for writing the spinal injury demand letter, with reference to the software being used to evaluate these claims – notably Colossus, Litigation Navigator or “LNav” and ClaimIQ. He combines the format created to address these claims software systems, and combines it with the use of medical literature, photographs, medical imaging, and illustrations as the case warrants. Practical examples are provided.
This presentation will help you optimize your pre-litigation claims handling of spinal injuries cases.
Spinal Injury Cases Session 3 and 4 are presently available for on demand video streaming in the Trial Guides CLE Center.