What kind of case is appropriate for early consultation?
We are often asked the same question: “When will early medical consultation really make a difference in my case and how much does it really cost?” We understand that many of you have extensive experience in either personal injury or medical malpractice cases. We have also come to learn that the more traditional way of using medical consultants is to get physicians involved when a problem arises in the case. We also know consideration must be given to the expense involved versus financial advantage in using medical consultation in the early stages of a case. Medical consultation can be quite expensive and not always a good value for the money spent. In fact, we have gotten feedback that some doctors are charging fees in excess of $4000 for answers to some rather simple questions, but on a limits case it may be necessary to pay their fees.
We want to present two that will help answer this month’s question. We thought you might find it interesting for us to give some examples regarding early consultation adding significant value and real help for you and your clients.
Case 1
In a complicated personal injury case involving an automobile accident a man died on scene in the collision. This man was the husband in the front passenger seat in a car driven by his wife. The other driver was clearly at fault and the process was moving along to recover damages. The wife of the deceased man suffered serious chronic physical injuries – but also suffered emotional/mental injuries including a very severe Post Traumatic Stress Disorder. Interestingly, she decided to settle a portion of her case (the wrongful death portion) without her attorney.
Because of the severity of the client’s symptoms and poor response the psychiatric/psychological treatment, one of our consultants was brought on board. It was through a review of the medical file, a search of the current medical literature, along with a face-to-face interview with the client, that it was quickly evident to the consultant this client’s behavior (settling a case without her attorney, reducing the frequency of her psychotherapy sessions, etc.) was diagnostic not only for severe PTSD, but also deep seated psychological issues that had a significant bearing on case value for pain and suffering and anticipated future medical costs. This fact had not been previously considered by the treating doctors and has given a fresh face to the case. The treating psychotherapist was open to accepting another theory of the case and a suggested course of psychiatric treatment. It is likely that the findings will lead to significantly more monetary compensation to the client.
This is a case of finding less than obvious facts, easily overlooked if not for the expert, that has had major implications for settlement and the client’s prognosis for a better recovery.
Case 2
In a personal injury case, the auto accident occurred at a low speed impact; however, the client, a young woman, sustained a debilitating nerve injury. She was a restrained passenger in a rear end collision – with the assaulting vehicle being a full sized semi-truck. Her symptoms were initially a “sore” shoulder and neck. Over time her clinical picture progressed into a devastating case of Thoracic Outlet Syndrome.
As one would expect, the defense team opined that the impact occurred at a velocity too low to cause serious injury. Our consultant was able to find a plethora of medical literature from well-known authorities to unequivocally show causation. Articles included a landmark study showing that carnival “bumper cars” have enough velocity to, in some situations, elicit serious injury. Another article in the medical literature demonstrated the cascade effect that occurs in these types of injuries. Clearly a minor injury in people with a genetic predisposition leads to devastating sequalae, negating the common defense argument that the genetic deformity is the cause of a person’s pain – not the semi-truck that rear ended them.
Finally, an article from the medical literature demonstrated that the diagnosis of this malady is not simply a diagnosis made by EMG (Electromyography) or any other test (as is claimed by some) – but rather a clinical diagnosis best made by a physician with vast experience with these kinds of problems, considering the history, physical exam and finally radiological or neurological testing. This aggressive literature search deflated the defense position that the patient did not truly have TOS (Thoracic Outlet Syndrome) because “the EMG was abnormal, but not enough so to cause symptoms as severe as those exhibited by this patient.” By being able, with the use of a thorough review of the medical literature, to counter defense theories considerable value was added to the settlement.
These cases are just two examples of cases where good “detective” work by medical consultants was able to make a significant difference in the overall value of the case as well as a better long-term outcome for the client.
What value can a medical consultant add?
Over the years we have been asked repeatedly, “What value can you add to my cases?” Let’s take a look at some examples – and you can decide if it is worth having a Medical Consultant take a look at your case in the early in your representation.
Case 1
In a complicated personal injury case involving an automobile crash a man died in a head on collision. He was the properly restrained passenger in a car driven by his wife. The other driver was clearly at fault and the process was in progress to recover damages. The wife of the deceased man suffered serious physical injuries – and also suffered emotional/mental injuries including Post Traumatic Stress Disorder. She decided to settle a portion of her case (the wrongful death portion) without informing her attorney - and told the attorney after the fact!
There was more work to be done regarding the woman’s future medical needs. It was at this point in the case when we were brought on board. It was quickly evident to the Medical Consultant that this behavior (settling a case without knowledge of her attorney) was diagnostic for PTSD. This fact had not been previously considered and has given a fresh face to the case. It is likely that this medical opinion will lead to significantly more monetary reimbursement to the client. The ability to recognize the wife’s behavior as part of her PTSD could have been easily overlooked if not for our Medical Consultant and has major implications for the settlement.
Case 2
In a personal injury case, involving a low speed impact, a young woman sustained a debilitating nerve injury. She was a restrained passenger in a rear end collision – with the offending vehicle being a full-sized semi-truck. Her symptoms were initially a “sore shoulder and neck.” Over time her symptoms progressed into a devastating case of Thoracic Outlet Syndrome.
As one would expect, the defense team opined that the impact occurred at a velocity too low to cause serious injury. Our consultant was able to find a plethora of medical literature from well known authorities to unequivocally show causation. Articles included a landmark study showing that carnival bumper cars have enough velocity to elicit serious injury. Another article demonstrated the cascade effect that occurs in these types of injuries.
Clearly a “minor” injury in people with a genetic predisposition leads to devastating sequalae negating the common defense argument that the genetic deformity is the cause of a person’s pain – not the semi-truck that rear ended them.
Finally, another article from the medical literature demonstrated that the diagnosis of this malady is not simply a diagnosis made by EMG or any other test (as is claimed by some) – but rather a clinical diagnosis best made by a physician with vast experience with the problem. The diagnosis is best made by considering the history, physical exam, and finally radiological or neurological testing. These facts deflated the defense position that the patient did not truly have TOS because “the EMG was abnormal, but not enough so to cause symptoms as severe as those exhibited by this patient.”
What is a Medical Summary Report and how will it benefit my client and this case?
The service most requested by our attorney clients is to prepare comprehensive Medical Summary Reports, that is, a complete review of the case including our medical opinions based on our review of the medical records, our interview with your client and our review of the pertinent medical literature. Medical Summary Reports can be used in two ways. The reports can be used to help attorneys do the medical coordination on the case. However, far and away, the reason attorneys have us prepare Medical Summary Reports is to include the report as part of their settle demand letters.
As you know, attorneys will certainly have medical records from treating doctors. You might even have a medical summary from one or two treating doctors about their part of the case. We produce comprehensive Medical Summary Reports that synthesize all the medical data and encompasses the entire case, including our opinions about ongoing medical problems, causation, mechanism of injury, functional losses and future medical care & costs for every injury/medical problem all backed up by evidence from the medical literature. We quote directly from the medical records, accident reports, our interview with your client and the literature to give a complete & comprehensive picture of the case. We make a concerted effort to write these reports in a way that both physicians and lay people understand.
Here are the headings of each section of the report:
Introduction
Records Reviewed
Brief History of Events
Pertinent Verbatim Records
Ongoing Medical Problems
Medical Costs to Date
Discussion
Future Medical Care & Costs
Summary
The consistent feedback we’ve been getting for years is that by using our Medical Summary Reports attorneys are, in fact, settling cases for better value with less attorney time. Some attorneys ask us to write a Medical Summary Report for every case they take in.
Can a medical/legal consultant provide causation opinion letters?
We recently had a case of a 29-year-old man who suffered substantial work-related cervical injuries due to a Cumulative Trauma Disorder. We were asked to address the question of possible on-the-job repetitive movement leading to the client sustaining ruptured cervical discs and associated symptoms with functional loss.
The client worked as an administrative assistant for two years for his company before being given the job of removing the file boxes.
The client was eventually given the job of removing heavy boxes filled with files from filing shelves. There were several shelves filled with heavy boxes of files. Many of the file boxes were above the client’s head and he removed the boxes by first balancing a box on his head and then getting the box down on a table. From there the client put each box on the floor before moving the boxes with the use of a dolly to another area of the office for shredding and disposal. It took the client several days to remove all the boxes.
Almost immediately after the client finished moving the boxes the client began to experience neck pain with radiation to both arms with associated numbness, tingling and weakness in his thumbs, first and index fingers bilaterally.
Subsequent cervical MRI showed C5-6 and C6-7 disc herniations. The client eventually needed a surgical intervention after conservative treatment was unsuccessful.
It was our opinion that the long hours the client spent typing in addition to the poor ergonomics of his work station contributed to him being pre-disposed to a cervical injury sustained after lifting heavy boxes for several days. We were able to back up our opinions with evidence from the medical literature.
Can a Medical/Legal Consultant help in answering specific medical questions in cases?
We recently had a case of a 41-year-old woman who’s vehicle was hit head on in an auto crash. The client hit her forehead on the steering wheel before the airbag deployed. The client continues to experience severe frontal headaches 2-3 times per week. She describes severe sharp pain starting in her forehead and radiating to her temples bilaterally. On a pain rating scale with 0 being no pain and 10 being pain severe enough to lose consciousness the client states these headaches rate on average as 7-8/10. Along with pain, she also describes photophobia and nausea associated with the headaches. The client reports because of the severity and frequency of these headaches her ability to carry on the tasks of everyday living have been significantly disrupted. She reports difficulty being able to maintain her work schedule and other kinds of normal life activities such as household chores, relationships and friendships, recreational activities, etc.
It was noted in her medical records by her gynecologist that the client had a documented history of migraine headaches that accompany her menstrual period. The client states these headaches started in her twenties and have always correlated with the onset of her period. She describes these headaches as lasting 2-3 hours and rates the pain as 1/10. She describes these headaches as being diffuse headache pain without associated symptoms such as dizziness, nausea or photophobia and reports these headaches as “mild.”
Opposing counsel claimed the client had a pre-existing condition and that her current accident-related headaches should not be included as a damage in the case. Our attorney client asked the question of us if the current headache problem was accident-related or a pre-existing condition as proposed by opposing counsel. It was our opinion the headaches were a direct result of the auto crash. Specifically, that the auto crash was the immediate and proximate cause of the client developing post-concussive headaches. Ultimately, the settlement included the headaches as a medical damage in the case supported by our report.
How do you determine traumatic injury causation?
Establishing causation is crucial to determine whether a party is liable for harming an individual and how much compensation is owed to the injured. However, establishing causation is not always straightforward and intuitive. More often, cases are complex—the cause is not readily apparent, or the outcome can have multiple contributing causes.
A recent review article by March 2020 Meilia et al. discussed the literature on the existing methods of causal analysis. Notable methods of causal analysis include:
It is important to use the appropriate approach to causation when evaluating different types of cases with varying degrees of complexity. That being said, a 2016 legal decision from the 10th Circuit US Court of Appeals endorsed the 3-step causal methodology as the generally accepted approach for injury causation. The decision was based on the 2009 Freeman et al. publication that described the application of the methodology to the analysis of spinal disk injury following a traffic crash.
Q: What are the criteria for the 3-step medicolegal causal methodology when assessing causation?
Defense experts commonly opine that forces encountered in low speed collisions are insufficient to cause serious injury. Can you comment on this?
On the contrary, there is ample evidence in medical practice, backed by credible literature that indicates collisions at speeds as low as 10 km/hr can do much harm to the human body.
One such example involves the cause of thoracic outlet syndrome (TOS). Medical literature notes TOS to be a combination of neck or shoulder trauma plus an anatomic predisposition.
Neck or shoulder trauma (like auto accidents) as a causative factor of TOS resulted from observations reported by a few thousand patients whose symptoms of pain in their necks and arms as well as numbness in their hands developed soon after a motor vehicle crash. This observation was followed by studies that demonstrated significant cell changes in the neck and back muscles of patients with TOS.
Congenital bands and ligaments are observed in a large majority of TOS patients. Several different kinds of bands have been recognized and categorized. These bands and ligaments are present since birth. In patients with TOS, they become associated with symptoms following trauma – even minor trauma. The anatomic findings are, therefore, usually regarded as a predisposing factor and not a causative agent.
One would assume that if the site of pathology in TOS is the scalene (tiny muscles in the neck) muscles, there should be abnormalities found in them. In fact findings of muscle scarring have been found and reported in the medical literature.
Based on the above observations, namely a history of neck or shoulder trauma, variations in normal anatomy, and cell changes in scalene muscles one can readily explain the pathophysiology of TOS. The underlying pathology in most patients is scarring of the scalene muscles caused by shoulder or neck injuries. The tight scalene muscles cause neck pain and headaches, as well as TMJ symptoms, which usually develop within a few days of the crash. As scarring in the muscles develops, the muscles compress the brachial plexus, eliciting the symptoms of pain, numbness, and weakness of the upper extremity. The onset of extremity symptoms may be delayed a few days to weeks, and in some patients, even months – as it takes time for scar tissue to develop and compress. As the pathophysiology becomes established, scarring adds to the problem. These injuries set up a vicious cycle. Pain, bad posture, poor physical conditioning, and anxiety then aggravate that cycle.
In conclusion, the anatomic problems that lead to TOS are now well known and documented in the medical literature. They consist of congenital anomalies that are superimposed on some form of trauma – even trauma caused by low impact forces.
Can a Medical/Legal Consultant Help in Answering Specific Medical Questions Related to Depression in Trauma Cases?