Winning Strategies And Tips And Workers’ Compensation Practice/Selected Issues

Winning Strategies And Tips And Workers’ Compensation Practice/Selected Issues

Credit Hours: 1.18 MCLE credits

Join Thomas Gagné on winning strategies and tips in workers compensation practice.

Thomas will provide with their potato guidance and answer the following questions for you and your clients on:

  • The importance of the initial intake.
  • To develop a case very early on in the process
  • Getting unauthorized medical bills paid
  • Third party practice issues
  • The importance of diagnosis and managing the medical aspects your case and in developing case theory

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Winning Strategies And Tips And Workers’ Compensation Practice/Selected Issues

What is a lawsuit?

What is a lawsuit?

Thomas Gagné

Many people think that hiring an attorney is synonymous with filing a lawsuit and then ultimately taking the case to trial. Nothing can be further from the truth. This impression is created by the media, in shows like Law and Order, where the crime is investigated, the criminal arrested, and the jury delivers its verdict in a few days if less.

First of all, a large percentage of lawyers, probably the majority, are what’s called transactional attorneys. These lawyers engineer things like corporate buyouts, mergers, real estate sales, sales of equities — pretty much anything to do with money and business. These lawyers rarely, if ever, see the inside of a courtroom. And if a lawsuit does spring from their work, transactional attorneys, as a rule, won’t be responsible for the suit. The parties will hire attorneys who specialize in business litigation. The stakes can be huge, say, a lawsuit alleging a corporation monopolizes a particular industry, or relatively modest, say, a suit alleging a fiduciary breach by a partnership grossing 100k a year.

Of course, business litigation isn’t the only type of litigation. There’s domestic litigation (divorce), criminal litigation, constitutional litigation, environmental litigation, personal injury litigation, and the list goes on. I happen to be a personal injury lawyer, and yes, I try cases in court, but not as many as I used to.

Litigation rears its ugly head when parties cannot agree on a solution to their conflict and must cast their issues before a judge and jury whom they’ve probably never met. It’s akin to letting a bunch of strangers decides what color to paint your living room when you want yellow and your wife wants eggshell.

What happens is this. A conflict arises between a party or parties. The parties try to solve the problem themselves, but because they are amateurs, at best, at this sort of thing, they just end up making the problem, and their positions relative to the problem, worse. They think that are saving money by not hiring professionals, i.e., lawyers, or they think that if they hire a lawyer it “raises the stakes” of the conflict, or will alienate the other side, and this frightens them. By this time it dawns on one or both of the parties that they need a lawyer. So they come into the lawyer’s office and lay the mess on the lawyer’s desk.

The lawyer, who probably wants the business because there are too many lawyers, and competition for business gets worse all the time, has to immediately file suit to protect himself from malpractice because his client has waited so long the statute of limitations is about to run.

The lawyer files what is called a complaint, which simply identifies the parties, who’s done what do whom, the specific facts of the case, and what the aggrieved party wants. That’s it. No magic. But the complaint opens a Pandora’s box of work for the attorney. Some litigation can go on for years. I’ve seen boxes piled to the ceiling in some cases. And I had to ask myself — is all this really necessary? And I’m not blaming lawyers. They’re as much caught up in the structure of what still amounts to a litigious legal system — filing, prepping for and going to trial — as any other player.

There’s an apropos quote in the movie, A Civil Action, when the protagonist/narrator attorney, played by John Travolta, defines a lawsuit as a game of chicken in which the parties spend way too much time and money on their case until the most reasonable party cries “Uncle!” — and then settles.

In the movie, the attorney alleges that a town’s water supply, supposedly polluted by the defendants, caused cancer in the town’s children. He rejects a 20 million dollar offer to settle primarily because he did not want to appear weak before his “white shoes” opponent, in spite of the fact that the offer was actually reasonable given the strengths and weaknesses of his and his opponent’s cases. The point is that, too often, litigation is a product of ego, a party’s ego, or in the most dangerous instance, an attorney’s ego. These people have something to prove, and in the process blind themselves to realities. Litigation ceases to be about building a sound case, seeking truth and just compensation, devolving instead into a game of poker — who’s bluffing whom? Who’s “the man?” Most adults think they are, well, adult, but most adults are a scratch away from infantile emotions manifested in adolescent behavior.

I do not mean that all cases should settle. Far from it. Sometimes the other side is acting so unreasonably in the face of credible, overwhelming evidence that the only option a litigant has is to go to trial. But I’m here to tell you that such cases are in the minority.

Now, the reality is that a tiny fraction of filed lawsuits ever makes it to trial. So what am I banging on about? My point is that even within that tiny fraction, the majority of those cases should have settled.

Luckily, legal culture has progressed, as well it should, as it is a discipline devoted to reason. Yes, reason fails sometimes. Yes, sometimes what sounds reasonable yields absurd results; yet, even with the corruption, the power plays, the pure politics of law, not to mention the pervasive black humor of the Universe, I believe the law (at least of the Anglo-American variety) transcends time, persons and politics and gets better. Think how foreign Miranda warning requirements would sound to a 19th-century jurist.

And as far as the law’s attitude toward litigation, we are transitioning from a legal culture centered on the trial to one centered on negotiation.

When I was in law school instruction in negotiation was not even offered, which is extremely odd as negotiation strategy and tactics are critical to resolving conflicts, especially ones which rise to the level of litigation. The “negotiation is common sense” argument fails as shown by the current proliferation of negotiation studies in law schools, especially it’s elaboration at leading schools like Harvard and MIT (see The Negotiation Project), as well as the growing number of certified mediators and arbitrators — lawyers, even non-lawyers, trained to help litigants reach a solutions, not to mention new rules requiring ADR — Alternative Dispute Resolution — as a condition precedent to trial.

This can only mean good news for the judiciary. Judges will be able to focus on cases properly brought before them — cases of a new impression which develop the law. For lawyers, unbiased mediators can help define critical issues, uncover strengths and weaknesses in litigants’ cases, and suggest novel solutions. For client/litigants, it means less expense, speedier results, and, hopefully, less stress and anxiety.

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Isn’t personal injury law just about money?

Isn’t personal injury law just about money?

The goal of making a claim and/or suing for damages is to compensate an injury victim. To compensate means to balance out. A person is injured as a result of another’s actions or lack of action. The new post accident state of affairs is out of balance – the injured party has lost something – in the form of impaired health, medical bills, lost wages, vocational impairment and so forth.

The question then becomes how do we, as a society, redress this imbalance? Well, let’s see. I suppose one way to balance the imbalance is to go back in time before the injury occurred and somehow prevent the actions and circumstances which gave rise to the injury in the first place. Now stick with me. I don’t want to come off as facetious. Let’s conduct a “thought experiment” to help us answer the question — isn’t personal injury law all about the money?

If time travel were possible, would an injury victim, or “claimant” opt for what amounts to be a “mulligan,’ i.e., a do-over? I submit she would and I’ll give you my reasons.

There are very few things in life as important as good health. I think we all can agree on this. One’s very livelihood flows from good health. If we cannot work due to ill health, most other aspects of life soon falter — our shelter, security, ability to pay for necessities like electricity and water, well, you get my drift.

Once any reasonable person realizes the critical role good health plays in her well-being, she will naturally do all she can to safeguard that commodity. Accordingly, if it were possible to go back in time to reset history as it were, to avoid n accident, a claimant would most likely do so.

Of course you can raise the case whereby a person would want money so badly that she’d be willing to suffer even a hideous injury in exchange for enough money. Such a person might point out that she is so distressed without money that the money she would receive in a personal injury award would, on balance, make her life better, even with the physical impairment.

To that I would say that such a person has more problems than lack of money, that her lack of money probably flows from her inability to set priorities. It’s better to avoid an accident and its crippling effects than have one and enjoy some money, especially if the crippling effects damage your future earning ability. Besides, I would say, is that the best idea you can come up with to earn money, to maim yourself? You be the judge.

Still not convinced? Let’s engage in a further thought experiment. Suppose someone were to say to you “I’ll give you $500,000.00, tax – free, if you allow me to break your right leg.” Let’s pretend for the moment such an agreement is not illegal. How many people would take this deal? I submit not very many.

But, you may argue, most people would say no because they are afraid of the pain. What would the person say if I would to throw in 50 grains of morphine before the breaking? Perhaps a few demented souls would take the deal. But those of us who understand the importance of good health to our well-being understand that even half a million dollars do not begin to compensate for a crippled leg. I would submit no amount of money would.

Money’s a funny thing. No matter how much you have, there’s still a nagging feeling that you don’t have enough. I’ve never been quite capable of understanding this phenomenon.
There will always be someone with more money than you, if your thing is to be at the top of the money pyramid. And money is not, and never has been, the measure of a good and worthy person. The measure of a good person is how well she treats and helps others, how committed she is to the truth, how constructively she handles adversaries and adversities and how much compassion is in her heart. Simple as that.

I digress. The fact is we cannot go back in time, at least not yet. So where does that leave the injury victim? Intentionally or not, another person has taken something from her and therefore owes her. The at-fault party has to pay you for her loss.

What has she lost? Her health. The best thing she can do to return to the status quo ante is to see a doctor or set of doctors, depending on the extent of her injuries. True enough, but this requires money.

Injury law at this point is about medical care. She may have also lost her ability to work; therefore, she may need occupational rehabilitation. So injury law is also about getting the injured back to work. The whole ordeal may have made her depressed and anxious. So, injury law is about getting the psychological care she needs. And don’t forget the little matter of her vehicle. Injury law is also about getting her back on the road so she return to work, shop, bowl — lead a normal life again. Injury law is about all these things.

Now the at – fault person does not personally provide the above services. It would be impossible. And the professionals who do provide such services are not paid in wampum. Money is the commodity that modern societies have always used to trade for goods and services. And it’s no different if injury victim needs goods and services in order to be made whole again.

So when confronted by the question of whether injury law is only about money, say of course it’s about the money. How else can you pay the victim’s medical bills, lost wages, psychological and property damage?

The question is merely designed to undermine the credibility of someone who’s been injured and is seeking compensation.


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What is negligence?

What is negligence?

Negligence is a legal concept, a subcategory of the larger legal concept of “torts.” Torts is one of the pillars of remedial law, along with criminal law and contracts, i.e., a law which lays out the process of securing a remedy for an alleged wrong. For example, in contract law, if a contracting party reneges on a promise, contract law provides a remedy for the aggrieved party. So too in tort law.

In tort law if a party is physically injured by another, tort law provides a remedy for the injured party.

Lady Justice | Personal Injury Law

If a party is physically injured by another, tort law provides a remedy for the injured party.

There are several types of torts including intentional and unintentional. Intentional torts include assaults of various varieties, defamation and so forth — wrongs which people intentionally commit. Then there are wrongs which people unintentionally commit. Negligence falls into the unintentional tort category.

When a person is negligent in the operation of a motor vehicle, and that negligence results in harm to another, then it is said that the negligent person is “liable” for the inflicted harm. This sounds very straightforward, right? Wrong. Judges, juries, and legal scholars have wrestled with the theoretical and practical meaning of negligence for centuries. It’s one of the beautiful and frustrating attributes of the law.

Negligence itself is divided into four major categories or “elements” — duty, breach, causation, and damages. Visit any first-year law school class around final exam time and you’ll likely encounter scores of zombie-like law students chanting the mantra of negligence — duty, breach, causation, damages.

Many of my clients think that merely because another driver has disregarded the rules of the road and collided with their vehicle, they are “owed” damages — i.e. money. In other words that the offender is “strictly liable.” This is not the case — even if the collision was so severe it “could have killed me.”

Understand that the client (which means you for the sake of this discussion) has the burden of proving the offender’ s negligence. It may not seem it, but right there is a mouthful. Some of my clients roll their eyes when I tell then this. They tell me: “why should I have to prove anything. After all, he hit me.

At law, this means that you — hopefully your lawyer — must prove each and every element of the alleged offender’ s negligence.

So let’s briefly examine the elements of negligence.

“Duty” means the obligation to take care in all of our dealings with others. For the purposes of this discussion, we’ll take duty for granted.

Let’s move on to breach. Breach is the heart of negligence — when a person breaches her duty of care to another person. In the context of an MVA (Motor Vehicle Accident), a breach can occur in any number of ways — traveling too fast for conditions, failure
to obey a traffic signal and so forth. It usually involves a traffic violation, but not necessarily so.

But, just because a police officer charges a driver with a traffic offense does not necessarily mean you have proven the element of breach. The police have been known to be wrong in their determination of liability. If that sounds like an understatement, it is.

Unless the responding officer actually sees an accident occur, his testimony about how the accident happened is irrelevant and inadmissible at trial. And unless he has been trained as an accident reconstruction expert, he cannot give his opinion as to who caused the accident and why.

This fact definitely comes as a shock to some clients. Moreover, what happens if there is evidence that you have also to acted negligently — what is called comparative negligence? We can take that issue up in another blog.

If you have a question based on this aspect, please give me a call at 864-233-2000 and book an appointment. I’ll be more than happy to meet with you for a free consultation.

For the moment let’s skip causation and talk about the last element of a negligence claim — damages. There are many types of damages, and one of the reasons you should seek counsel is to make sure you claim all the damages due you. An attorney also has the expertise to prove them. It is said that a lawyer’s stock in trade is his time. That’s true. But the real lawyer’s stack in trade is his expertise and the years of study and sacrifice that has gone into that expertise.

Now, damages include medical bills, pain, suffering, vehicle damage and so forth. Again, you, the victim, must shoulder the burden of proving your damages.

And finally, there’s causation. In a nutshell, causation links the breach to damages. In other words, you have to prove that because of the at-fault drivers’ negligence, you suffered property damage, bodily injury and so forth. Again this is easier said than done. Perhaps of all the elements we’ve discussed proving causation requires the services of a lawyer.

Good luck with your claim and don’t forget to call me should you have any questions!

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I was in a car wreck, I have more medical bills, my car does not run right. What can I do?

I was in a car wreck, I have more medical bills, my car does not run right. What can I do?

I was in a car wreck and the insurance company sent me some money for my property damage and pain and suffering, but I still have more medical bills, and my car still does not run right. What can I do?

This is a common question asked by prospective clients. The short answer is: it depends.

When you have been involved in a car accident which was not your fault, the two major type of potentially recoverable damages are property damages (PD) and bodily injury damages (BI).

When your car sustains damage after a wreck, the insurance company will send a trained adjuster out to estimate the damage (PD). If your vehicle is damaged beyond what it’s worth, the carrier will “total it out”, i.e., pay you the cost of replacing your car based on its make, model, year, pre-collision condition and comparables. “Bluebook” estimates are persuasive but not dispositive.

Many of my clients are unsatisfied with the estimate and disagree with it. In that case, there are a couple of things you can do. First, you can seek a second opinion and get a higher estimate and submit to the carrier. Of course, the second estimate may not be higher, and, indeed, it could be lower —- thereby weakening your argument for higher PD compensation.

Secondly, you can sue. If the car’s value is under $7500.00 you can sue in magistrate’s court in SC. Magistrate Court is a good option as the costs of bringing an action is low. You may not need an attorney (indeed, most attorneys will not work for this amount – one third or higher of $7,500.00), and the court costs are usually very reasonable – maybe less than one hundred dollars. If the dispute exceeds $7500.00, then you may have to sue in the circuit court which can become expensive.

My clients sometimes complain that the insurance company is not taking into account any special modifications they may have made to the vehicle, such as a sound system, special wheels, and so forth. Unfortunately, insurance companies will not usually pay for damaged modifications.

The most nettlesome problem arises if the client has already signed a release for their property damage. Basically, a release is an agreement between the client and the insurance company whereby the Client or the injured party agrees not to sue the person who caused the collision in exchange for a certain amount of money. Unless a third party has forged your signature and you can prove it or you were forced to the sign the release, or you can show that your signature was otherwise involuntary, a signed release is presumptively valid and very difficult to legally defeat. Signing a release may also extinguish your right to receive any further money for bodily injury, depending on the language of the release. So do not sign anything until you have seen an attorney.

I have seen an insurance company separately pay for medical bills and then issue a check for all other BI damages once the client finishes treatment. But the usual practice is to pay the client only once she has finished treating with her doctors. If you receive a large check accompanied by a release and you don’t have a lawyer, STOP RIGHT THERE, and call me at 233.2000, so I can at least explain your rights to you and try to give you an idea what your case may actually be worth. However, note that your case probably hasn’t been “worked up” to fairly represent your actual damages, but I can give you an idea.

Chances are the carrier is lowballing on her first offer to settle the BI. Insurance companies love to waylay clients before they retain legal representation hoping to pay as little as possible in the hope that the client does not know what she is doing, which, to be honest, she really doesn’t. Albeit, this may be hard medicine, but I prescribe it from concern, not animus. Laypersons are not trained in the law and usually miss vital information that can increase the value of their claim. Just as lawyers should not repair their own electrical problems, non-attorneys should leave the law to responsible lawyers.

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Isn’t personal injury law just about money?

What do I do if I hurt myself at work?

Workplace injuries are extremely common, so, first of all, don’t feel you’re “odd” or a “special case.” Employers know that workplace injuries are a business risk. That’s why most employers carry workers’ compensation insurance. Workers’ compensation insurance works pretty much the same way as other insurance policies. The employer, whether it’s a big corporation or a sole proprietorship, pays a premium to the insurance carrier, so that when one of his, or its, employees are injured, the employer is not out of pocket for the damages.

So what’s the catch? Insurance companies only pay “compensable” claims. Just because you think you have a compensable claim does not mean the insurance company will automatically start cutting you checks. There are many hurdles standing between you and your benefits.

This where a personal injury attorney comes in. A knowledgeable and experienced lawyer will help you navigate your claim through the legal and factual obstacle course that sinks many otherwise valid claims.

What do I have to do to get my workers’ compensation benefits?

The first thing you need to do when you are hurt at work is to report it to your immediate supervisor. This is called giving your employer “notice” of your injury. If you don’t carry anything else away from this blog, remember this: tell your employer how you were injured, where the accident happened, what body part or parts are injured, when you were injured, and then make sure you ask to see a doctor.

Upon receiving notice, your employer or his representative should fill out an incident report narrating the facts of your case. Make sure you get a copy of this report. Make several copies of it. After this, your employer may refer to an in-house doctor. In-house doctors are becoming more and more common in big corporations. If your employer has no in-house physician, he will probably refer you to a private group that customarily deals with that employer — usually what I call a “doc-in-a-box.” These are private emergency medical clinics. Some are quite good, others provide questionable services. In any event, if your employer refers you to a doctor, you must go. Don’t worry, you have the right to demand alternate care and get a second opinion. But at this stage, you need to give your employer the chance to provide medical treatment. Failing to go to your employer’s doctor could seriously jeopardize your case.

When you meet with your employee’s doctor, say as little as possible about the facts and circumstances of your case as anything you say can be used against you later on. But the same token, be careful filling out the doctor’s intake form. Again, you are essentially making a statement and any inconsistencies with what you report and what you later testify to will damage your credibility, and it’s not an overstatement to say that credibility is the single most important factor to consider in any litigation.

Should I go to my family doctor?

If your employer fails to refer you to “the company doctor,” by all means make an appointment to see your family physician. Also, this is another good time to call an experienced personal injury lawyer. Please feel free to call our firm at any time, day or night. If we are not available, leave a message with our answering service. We will get back to you as soon as possible.

Be careful what you say to your family doctor. Although she is “on your side”, she may report damaging statements you make, not knowing any better because she is not a lawyer. If you don’t have a family doctor, go the emergency room or ask your attorney to refer you to a doctor. He or she should have a network of generalists and specialists ready and willing to examine you, treat you, and if necessary, provide a medical opinion as to the seriousness of your injury, what treatment is necessary, and what, if any, future care you may need.

What if I am unable to return to work?

If your injury results in your being unable to return to work at full duty in a full duty, the insurance carrier should begin paying you what’s called “temporary total disability,” i.e., your weekly checks, as long as the authorized physician has written a note excusing you from work because of the nature of your injury. Make a copy of this and make sure it gets to your employer who should forward it to the carrier. If you are not receiving checks, call your lawyer and she should get on the phone with the carrier and raise a ruckus. Believe me, unless you are independently wealthy, you’ll need that money. Deliver a copy of the doctor’s excuse to your attorney as well as all other documentation pertaining to your case. Remember, giving your lawyer too much information is better than giving him too little.

There are many other pitfalls to avoid when trying to get your benefits. If you’ve been hurt at work, call us immediately at 864.233.2000 in Greenville and 591.1114 in a Spartanburg. We’ll safeguard the integrity of your case and get you the money you need and deserve.

Good luck and be careful out there. Remember, you are not alone. We’re only a phone call away.

What should I do if I’m in a car accident?

What should I do if I’m in a car accident?

Assuming that you are conscious and able to move about, you’re likely to be stunned and confused. If you smell smoke your vehicle may be on fire. In that case, you don’t have a lot of time. Check to see if your passengers are conscious and able to move. If so, exit the car and extract the passengers carefully as they may have suffered neck and spine injuries. You don’t want to aggravate any injuries, but it is necessary to get them to the safety before the car burns.

If you are certain that your car is not likely to catch fire, stay put and call 911. Tell the operator where you are. Do not tell them the facts of the case yet as chances are you may not know all the facts at this point, and you don’t want to make a mistake.

If the car is drivable and its position poses a hazard to yourself or other drivers and passengers, by all means, move it to a safe location – usually beside the road in the breakdown lane.

If your vehicle’s location does not pose a danger, say put and wait for help. Keep your phone on. If anyone is bleeding and you don’t have to move them, apply pressure with a piece of cloth or clothing.

If you are mobile and you don’t have to take care of anyone near you, check on the other driver and her passengers. Ask them if they are bleeding. If so, apply pressure. If not, do not move them. You do not want to make matters worse. On the other hand, you don’t want someone to expire if first aid could’ve saved her.

If the other driver and her passengers are able, and only if they are able, ask for their names and contact information. Don’t forget to get that information from your passengers as well as they are also witnesses to the accident. If there are any witnesses not involved in the accident, i.e., bystanders, do the same. This information could be very important if a question liability or other issues should arise.

Also, exchange insurance information. Make it a habit to keep paper and pens in your vehicle for this and other contingencies. When help arrives, direct them to the people who are injured.

After the injured are cared for, the police will probably want you to make a statement. If you have been drinking or taking drugs or both, politely state you refuse to answer any questions and that you want a lawyer. Even if you are not under arrest that should be enough to back the police off. Always be polite and say, “with all due respect,” to official personnel.

Refuse to take any field sobriety test, breathalyzer or blood test.
Then call our office call me at 233-2000 or 591-1114 immediately.

Even if DUI is not an issue, you still must be careful what you say because any statement you make could be used against you in any future proceeding. Have your license and registration ready.

After her investigation, the responding officer will give you what’s called a form FR – 10 – Notice of Requirement. Make several Xerox copies of this document when you get a chance. It contains important insurance information as well as the responding officer’s opinion as to who was at fault for the accident.

Note, however, that this is only the officer’s opinion. Unless she saw the wreck she’s really in no credible position to render an opinion. Also, remember that the responding officer is likely not an accident reconstruction expert. But the fact is that in most cases the officer’s opinion regarding liability is given weight.

If you retain a personal injury attorney he will also need the FR-10 for his file.

If you have been in a car accident, you should go to the emergency room, even if you don’t think you’ve been hurt. After a traumatic event, many people are hurt and don’t even know it. This is due to an influx of adrenaline which masks the pain your injury causes – a survivor response that facilitates your escaping dangerous situations. It’s when you feel safe that the adrenaline rush subsides, and the pain “blossoms” as it were.

A thorough examination by the ER staff should rule out any major injuries. If, however, you’re still feeling pain in any part of your body, schedule an appointment with your family doctor immediately, and if you don’t have a family doctor, call us, and we will get you the medical care that you need.

If you been have been injured as a result of a car wreck call us for a free consultation: we’ll explain your rights and what services we can provide.

In the meantime, remember to always drive defensively, and never drink and drive.


Top 5 Reasons to Retain a Personal Injury Lawyer

Top 5 Reasons to Retain a Personal Injury Lawyer

1. Lawyers know the law

Lady Justice Personal Injury LawThis sounds obvious, but what are the implications of this statement? Personal Injury Law, like all other areas of law, is complex. Courts and legislatures have wrestled with personal injury law and its manifold applications and meanings for centuries.

It is nothing new and has gained notoriety in the past few decades because of sensational awards and less than tasteful attorney advertising. And the body of personal injury law increases daily. Even for a licensed attorney, it can take years to become a truly competent personal injury advocate.

For a layperson, unschooled in the law, to think he can fairly contend with a sophisticated insurance company whose business it is to deny claims, and which has an army of highly paid attorneys well versed in personal injury law at its disposal is, bluntly speaking, ludicrous.

Going up against an insurance company unrepresented is akin to a person who has never seen a chess set before suddenly cast into a match with a Russian master. David versus Goliath may be a good story, but, David rarely beats Goliath.

For example, if you have been injured in an accident, an insurance adjuster may tell you that you are not injured enough to justify any compensation whatsoever. And she may be right because you have not presented any evidence to show you have been injured, You have merely claimed it. You have the burden of proof to show that you’ve been injured, not the other way around. On the other hand, she may be bluffing you. Either way, you just don’t know without professional guidance.


2. Lawyers know what compensation is due their clients

Personal Injury Law - Lawyers know what compensation is due their clientsEvery legitimate injury case results in “damages.”  Damages have “value.” Determining how that value translates into money is the central challenge of personal injury law. People complain that all injury lawyers are interested in is money. This is absurd as there is much more to an injury case than damages. But until man can go back in time and with foreknowledge avoid the accidents that befall him, money is the only way to compensate a person for her damages. I would much rather have my client avoid the tragic consequences a serious accident than get him money after the fact. But unfortunately, that is not the reality.

Now, most non-lawyers focus on their “pain and suffering.” But pain and suffering, while important, is only one piece of the damages puzzle.  But what constitutes pain and suffering? How is it measured? How is it translated into dollars and cents? What about lost wages, future lost wages, vocational impairment, permanent disability and the host of other potential damages? Luckily, experienced injury lawyers are out there trained to deal with these and other questions about your case.

3. Lawyers know how to build cases

Lawyers know how to build casesA strong legal case does not burst full-blown and mature into the world. Cases must be developed. Lawyers identify relevant and credible witnesses. Experts examine accident scenes and reconstruct what happened, reducing it to writing, exhibits, and testimony. Investigators unearth new evidence, run background checks, locate missing witnesses, build photographic records. If a case is very serious, a lawyer retains doctors to render opinions diagnoses, causation, and a client’s future medical needs. And after all, this is done, a lawyer needs to research the law applicable to the case.

From the perspective of laypersons, such work occurs behind the scenes, which accounts for the confusion as to what lawyers actually do.  There’s a lot more to legal practice than making a few phone calls. It’s easy for people to appreciate a doctor’s or an architect’s expertise – their work is manifested in something concrete – a prescription, a building. A lawyer’s work is largely intellectual, its goal — justice — is ephemeral – difficult to perceive and appreciate.


4. Lawyers know what to say, but more importantly, what not to say

Have you ever heard the adage: give him enough rope and he’ll hang himself? This applies in spades in the context of making a personal injury claim.

Clients are eager to tell their story to someone in an “official position.”  Adjusters know this and prey on the fact. Injury victim has the fallacious idea that if they are “reasonable” with the insurance company, the insurance company will respond in a reasonable manner. The non-attorney believes he’s on a journey of cooperation with the insurance company – that he’s in “good hands.” Nothing could be further from the truth. The insurance company’s goal is to pay you nothing, or as little as possible. As the non-attorney proceeds on her merry way, disclosing gourds of information about the claim and herself, mindless of the fact that some information might hurt her case as the adjuster sits back, say nothing and encourages her to proceed in her tale of woe.

The adjuster will flatter her, pretend to be interested in every aspect of her story, when, in fact, he’s like a spider, waiting for her to make that one disclosure, that mistake or series of mistakes fatal to her case. What kind of mistake? That you were partially at fault. That you had been partying. That you got in a car with a person you knew was partying. That you had injured your back in an accident the week before. That you have a motive to lie. Anyone of a thousand things.

But a good lawyer knows “the game” and properly prepares clients for examinations. He evaluates if the testimony is relevant and whether it should be disclosed. He knows what areas to avoid and what areas to highlight. He’ll counsel the client to always tell the truth, to appreciate the concept of truth.  He’ll know how to neutralize or minimize information harmful to your case and unearth facts favorable to your case that a client might fail to spot, and so on.

5. If you are not represented by an attorney, insurance companies will not take you seriously

There it is. In a nutshell. Insurance adjusters rub their hands together at the prospect of an unrepresented injury victim because they know they know the rules of the game and how to manipulate them and the victim doesn’t. A case of Godzilla vs. Bambi. And take it as an article of faith – Godzilla has no respect for Bambi.Attorney Thomas Gagné knows the law

Overcoming Medicine – Mastering The Medical Case In Personal Injury Claims

Overcoming Medicine – Mastering The Medical Case In Personal Injury Claims

A Continuing Legal Education Presentation Sponsored By The South Carolina Bar

Thomas M. Gagne, Esq.
November 9, 2017
Columbia, South Carolina

“There are more things in heaven and earth, Horatio, than are dreamt of in your philosophy.”

Hamlet (Act I, Scene V)

Welcome to Overcoming Medicine– Mastering The Medical Case In Personal Injury Claims

Before I begin I’d like to thank Terry Burnette, Jane Points and Warren Holland and all the
support staff at South Carolina’s CLE division for making these presentations possible.

In designing this CLE, I envisioned an audience of claimants’ attorneys with at least three year’s experience litigating negligence and workers’ compensation claims. But I hope attorneys with more experience as well as newly minted attorneys will also find something useful in the following brief.

Today I’d like to explore with you how to effectively manage your medical case.

To this end, I’ll employ a case study, a workers’ compensation claim, by which we’ll touch on how to quickly organize medical records for flash analysis, how doctors think, constructing medical interrogatories, some head and brain anatomy, the nature of pain and a few of the tests and treatments you’ll likely encounter in your practice, and most importantly, most importantly, the credibility of the medical care your client is receiving,

So, let’s jump into our case study. As this was an actual case of mine, I’ve used pseudonyms.

Your client, Joseph Morse, an employee of the Dynamic Staffing Agency located in Greenville, South Carolina, suffered grievous injuries at the BOM plant in Greer, South Carolina. BOM makes automotive parts for foreign and domestic distribution.

The undisputed facts are as follows: Joseph Morse had been working for BOM for the last two years as a “picker” in the main warehouse. His duties required him to fill internal orders by “picking” parts from various bins in the warehouse and loading them into containers for transfer to other parts of the plant for final fabrication.

He was popular with his superiors and co-workers and was being considered for a full – time position, possibly even in management owing to his strong work ethic and excellent social skills.

On April 10, 2016, as Joseph, on foot, rounded a corner on in the warehouse, a forklift struck him causing him to fall and strike his head on the floor with great force and violence. As a proximate result of the collision, he suffered head trauma to the frontal part of his skull. (EXHIBIT 3 – HUMAN SKULL)

Practice Point: The forklift driver, Devon Hamilton, was employed by a different staffing agency than Joseph, First Choice Staffing Agency of Greer, South Carolina, which meant that I also had a possible third-party cause of action against First Choice on a theory of respondeat superior, as long as First Choice did not qualify as a statutory employer.

Joseph’s supervisor eyewitnessed the accident and immediately reported the injury to Human Resources per BOM standard operating procedure. HR promptly called Emergency Medical Services which arrived on the scene within the half hour.

Following impact, Morse lost consciousness for several minutes – as duly noted in the EMS records as LOC. EMS boarded him and immobilized his head. The responders took his vital signs which were normal except for bilaterally constricted pupils. Joseph was fully conscious and lucid by the time he was loaded into the ambulance and complained of an intense headache.

Joseph retained my services on April 30th of the same year. He completed the required HIPPA Form allowing us access to his medical records. (EXHIBIT 4 – HIPPA FORM)

Make certain you get this signed at intake to save time. Order all medical records including all tests (which you may have to order separately), the EMS and ER reports, family doctor records if applicable along with a five-year medical history.

Practice point: Be sure to order non-medically related records pertaining to the incident as well, including accident reports, first responder reports, police reports if applicable, reports that include statements made by the parties to employers’ representatives, to ER personnel and statements to family doctors. These early statements can be quite illuminating and can make or break a case. Be careful to limit your request to the body part and pathology involved, or you’ll end up paying a lot of money for unrelated records.

I filed a Form 50 but did not request a hearing. I find its best not to request a hearing immediately unless the client has already reached MMI. You don’t want to have to withdraw your 50 prior to a scheduled hearing if the case isn’t ripe for some reason. If you do find yourself in that situation, ask opposing counsel if she would agree to a consent order to continue the case, that way you don’t “burn” your one chance to withdraw the 50. Filing the 50 also gives you subpeona power to order medical and other records. Use it as some

providers can be difficult to deal with and a subpoena gives you added leverage — or the appearance leverage anyway.

In this case, the records tumbled in. Records from various providers arrived loaded with symptoms, non-specific diagnoses and possible treatments, a reference to a CT scan (computer tomography) but no written CT report. How to make sense of all this? In these circumstances the question quickly becomes: how do you efficiently organize multiple medical records for quick and effective analysis?

When I began my practice, I was overwhelmed by what I perceived to be the byzantine nature of medical records. The language was foreign, and I could find no inherent organizational system to guide me through the thicket of acronyms and symbols. Sure, I had a medical dictionary, a Merck’s and a DeGowin (diagnostic texts) but they did nothing to help me organize the records.

I wanted an organizational framework. In the hermeneutics of law school, I needed an IRAC.

Other initial, corollary questions arose: how do doctors really diagnose patients and ultimately, how do you manage institutional and confirmation bias within forensic

diagnostic procedure? This is mouthful, but the relevancy of the following will become clearer as we proceed, so hang in there, and light will dawn.

In, How Doctors Really Think, author Dr. Jerome Groopman claims that most doctors reach a preliminary, if not final, diagnosis after reviewing the patient’s history, the history of the present illness, talking to her,

and physically examining her, which is usually accomplished under fifteen minutes. The diagnosis usually only addresses the chief complaint, a constant source of frustration for PI lawyers who must address all the relevant injuries and pathologies, and with the rise of the diagnostic machine, X-rays, MRI’s, CT’s, PET scans and so forth, even the time-honored tradition of laying of hands is going the way of the house call. Such an

abbreviated examination is clear to anyone who has seen a doctor in the last twenty years. It’s wait and hurry up. Economic reasons oblige doctors, especially general practitioners to see as many patients as possible during the work day.

The simple point Groopman makes is that patients are not receiving enough attention from their doctors — leaving the mopping up of potentially serious pathologies to other medical providers including you the plaintiff’s personal injury attorney. Now, whether this is

medically and legally ethical is a good question, but the practical reality exists, as we shall see.

From the patient’s history HPI, and cursory physical exam, doctors employ the cognitive tool of pattern recognition. See How Doctors Really Think, Groopman, Jerome, M.D., First Mariner Books, Edition 2008.

Pattern recognition is simply another way of saying that, at least in the pre-objective testing phase of diagnosis, the doctors resort to their professional experience to correctly identify patients’ ailments. In the medical context, the patient presents a specific symptom or set of symptoms and doctors search remembered pathologies matching those symptoms. Lawyers do much the same thing when settling on legal theories. In fact, this cognitive method cuts across many disciplines, from master chess players to military field commanders.

Pattern recognition has its pitfalls, however. The acuity of the diagnosis is directly proportional to the doctors’ experience, common sensical enough but not very compelling. But the major fault, I believe, in this cognitive method “confirmation bias.”

Confirmation bias occurs when the investigator happens across a bit of data that, on its surface, neatly accords with her working hypothesis, incorporating the data into her theory

with little critical analysis, when the data could have been as well have been compatible, explanatory and predictive as part of a completely different diagnostic hypothesis. The harried, now hurried doctor is keen to get on with her study to see the next patient who has been waiting now for forty – five minutes.

No doubt pattern recognition is expedient and well suited to doctors’ managing today’s large patient caseloads, and I don’t want to seem unduly critical and gloss over the truly
fine work most doctors do under such trying conditions, but in their haste to make diagnostic decisions they risk overlooking clues which could result in a better, more correct and thorough diagnosis. And, as in the legal profession, the stakes are too high to permit much of a margin for error. I certainly don’t have a remedy for this problem, except to say that as PI lawyers we can help plug the leaks – a daunting yet noble challenge.

One solution that all of us can utilize, doctors as well as lawyers, is to listen carefully to the client/ patient and carefully probe with questions. Instead of leading a patient to an answer that fits well with the doctors’ preliminary hypothesis, she should limit her questions as much as possible to open ended ones.

Leading questions limit the scope of inquiry, because the scientific method of inquiry requires a preliminary theory to begin to know where to look. The very act of methodical investigation limits our ability to detect the truth. The problem is that very act of choosing

an initial investigative perspective necessarily limits the range of discovery. More prosaically, where you point the telescope at first necessarily limits you to that part of the sky, no matter how deeply you peer into it. Another popular term for this phenomenon is “tunnel vision.” Tunnel vision is the enemy.

Of course, doctors have long recognized this paradox and why differential diagnosis, considering alternate diagnoses to explain a symptom or set of symptoms, is so critical. The question is: how often do doctors engage in differential diagnosis? What is the “Realwissenschaft” of contemporary medical inquiry, or more precisely, what is the “Realpolitick” of contemporary medical inquiry and opinion?

Another obstacle hindering proper diagnosis is the clinical setting itself. It chills a patient’s inclination to communicate. In my practice, I’ve found that “patient passivity” occurs for any number of reasons — “white coat syndrome”, fear of appearing foolish by saying “the wrong thing”, intimidation bred by the difference between the doctor’s social status and the patient’s, or simply because the patient’s sitting there half naked, brimming with mortal dread. Consequently, my clients ask me, a non-physician, what’s wrong with them. When I ask them why didn’t they ask the doctor they’re at a loss. They’re better at asking their mechanic what ails their car than asking a doctor what ails them. It’s perfectly absurd. So be it.

Crucially, the disconnect between doctor and patient can arise because the patient usually does not tell her story in the way professionals have been taught to think. Call it “cognitive misalignment”, people talking past one another. The professional tends to curtail the patient’s narrative to glean the information he, the professional, deems critical. This is a big can of worms, better saved for another

briefing. Suffice it to say that as far as doctors are concerned ask the doctor to slow down and instruct to your client to speak up for herself.

Now, all this speculation is nice, and I believe t reflect reality, but I have the gnawing sense that the disconnect lies in the fact that the least said by the doctor to the patient, the better, given the litigiousness of some patients. Better not to say anything that could get you in trouble down the road. Unfortunately, I think this attitude is in direct contradistinction to the Hippocratic Oath.

Therefore, from a normative perspective, professionals, and I mean doctors and lawyers now, should ask broad questions of their patients/clients and then allow them time to answer in their own way. Often the client will inadvertently drop a clue about the true nature her illness — she mentions a fact, or set of facts, perhaps marginally significant to her, but an important key to identifying and understanding her disorder.

This method is referred to as “active listening” or AL. AL enlarges the opportunities for analytical revision and differential diagnoses thereby increasing the probability of finding the correct diagnosis.

AL entails the professional recalibrating the way he thinks – easier said than done — and engaging the patient in a working dialogue. The professional and lay person inform and are informed by the other. The patient/client becomes something more than an object to be examined, more than a “case”. She becomes partner in the discovery process. AL helps to check confirmation bias by allowing the patient to freely associate, the dominant narrative method of laypersons. Although it might irritate the more orderly professional mind, instead of discouraging a “rambling” narrative, it should be encouraged, and if the client/patient upsets the doctor’s diagnostic apple cart, so much the better, prompting the doctor to return to the drawing board to begin a fresh course of inquiry.

Active listening checks a patient’s reluctance to speak up and ask questions. It enhances the discovery process by prompting the patient to actively engage in a dialectical discussion and really think about her ailment. The physician’s attitude should not merely be “it’s ok to talk to me, even quiz me” she should be explicit: “Please talk to me. It may help me understand what’s going on with you.”

To the question: where do we point the telescope? Imagine an astronomer looking for, say, supernovae and out of space a supernova directly signals the astronomer – “Hey, look over here.” Such is the inherent advantage in studying humans, and we should capitalize this advantage.

I tell my clients: we’re now a team; please, I need your help during this entire process. I know the law, but I can’t climb into your skin, or “feel your pain.” Only you’ve seen the movie of your life.

The pattern recognition model and the active listening model of professional cognition are not mutually exclusive. Skillfully employed they are powerful allies in the better treatment of patients/clients. As we continue with our case study, as we shall see, confirmation bias is the least insidious bias polluting what should be our twin goals objective analysis.

Now, some of you have probably already identified a potential issue, when patients/clients are encouraged to “open up” to opposing doctors — all that harmful information about preexisting conditions, comparative liability, sloppy post-accident treatment history, credibility issues, etc. slips out.

All I can offer is to woodshed the client carefully and urge him not to volunteer information not directly related to her physical problem to medical professionals. The alternative is not acceptable: completely gagging the client and hazarding an incorrect diagnosis.
The relevancy of these musings regarding professional cognition will become clearer as we proceed.

Return to my original question of how to organize medical records, understanding how doctors think in a clinical setting was critical and eventually led me to organize medical notes according to the clients’ medical history, his HPI, the physical exam, and client statements. It’s not a bad method. But I believe there’s a better one.

Here’s my tip: organize your medical notes as physicians organize their examinations — via the SOAPPI method – an acronym that stands for symptoms, objective tests, assessments, plan, prognosis and impairment. (EXHIBIT 5 – SOAPPI)

Not only does SOAPPI impeccably order notes, it lends itself especially well to organizing complex medical cases in the form of a medical digest. Just add the extra fields of date of service and medical provider at the beginning and let EXCEL do the rest. This digest comes in handy come litigation time. (EXHIBIT 6 – MEDICAL DIGEST)

I’ll flesh out this method as we proceed with Morse’s case.

Of course it’s not a silver bullet. SOAPPI does not exclude other factors you have to consider in the medical portion of your case, nor is it the only medical heuristic acronym (HEENT comes to mind), but it does provide the medical and legal specialist with a reliable conceptual map that aids in organizing a great amount of medical information quickly and accurately.

By the way, HEENT stands for the results of the Heart, Eyes, Ears Nose Throat examination. (EXHIBIT 7 -HEENT).

Let’s look at “S”. At this point Joseph exhibited no other symptoms except a slight laceration to the frontal part of his skull and a severe headache. No surprises here given the mechanics of his fall. (EXHIBIT 8 – DIAGRAM OF HUMAN SKULL)

So, let’s take this opportunity to discuss the gross anatomy of the human skull and brain.

As you can see, the skull is not composed of one unified piece of bone. It is divided into several sections. For our purposes the gross anatomy of human skull can be divided into
nine regions: The Frontal, Parietal, Temporal, Nasal, Sphenoid, Lacrimal, Zygomatic, Maxilla and Mandible regions.

These sections are fused together by immovable stitch – like structures called sutures, which, unfortunately, makes it difficult for doctors to detect fractures.

Beneath the skull lies several membranes. The main membrane is the dura which covers and protects the brain. Your brain is connected to the body via the brainstem. (EXHIBIT 9 – BRAINSTEM)

The brain itself is divided into “lobes”, the parietal, frontal, occipital and temporal, each lobe responsible for its own set of regulatory responsibilities. And as we can see from (EXHIBIT 10 – HUMAN BRAIN), the brain is divided longitudinally into the right and left sides.

Except for the brain stem, the human brain, this miraculous feat of the evolutionary engineering of lifeless, insensate matter into a self-reflexive, self – conscious organ is not connected to any other part of your body, existing, as the British say of their island, in its “proud isolation.” Our brains are free-floating ovoid shaped structures suspended in cerebrospinal fluid, a semi viscous fluid that permeates and surrounds the brain and nervous tissues.

The folds you see constitute the cerebral cortex, a layer of tissue covering the deeper gray and white matter. The cerebral cortex is where much of the brain’s activity is located. The folds are an ingenious evolutionary method of maximizing the area of the brain while

minimizing the space it occupies, otherwise we’d be walking around with heads the size of basketballs.

As far as what part of the bran does what, remember ontogeny recapitulates phylogeny. That is, the more primitive functions of the brain lie in its base, respiration, circulation and so on, and as you move north more complex functions emerge culminating in
thought, creativity and self – reflection. Really an astounding bit of evolutionary prestidigitation.

The brainstem itself tapers into the spinal column (EXHIBIT 11 – SPINAL COLUMN) which is divided into vertebral regions – the cervical, (composed of seven vertebrae) thoracic, (composed of twelve vertebrae) lumbar, (composed of five vertebrae) sacrum (composed of five vertebrae) and the coccyx (composed of four vertebrae), the last being an odd piece of anatomy representing a portion of the spine that had tapered into a tail in our primordial ancestors, but still carries on many important functions. The coccyx however is not vestigial — as anyone who has fractured their butt bone can attest to it is a nerve rich area and aids in our balance.

The brain, brain stem, and vertebrae constitute the central nervous system. I’d estimate that 60-70 percent of your practice will be devoted to pathologies of the spine, so you need to

become familiar with this anatomy, and the disorders it prone to.

Nervous system tissue branching away from the vertebrae to the various parts of the human body, creating the body’s information superhighway, if you will, transmits electrical signals from the various parts of the body to the brain and vice versa. The nerve cells and structures flowing from the spinal cord is called the peripheral nervous system. You’ll find diseases of the peripheral nervous system mainly in cases involving carpal and cubital tunnel syndromes, ulnar neuropathies, complex regional pain syndrome and fibromyalgia. (EXHIBIT 12 – PERIPHERAL NERVOUS SYSTEM)

Now, returning to our case study, at the hospital Joseph has more bad luck. The ER, as usual, was overflowing with patients. Harried doctors and nurses rushed by Joseph barely noticing him, especially since EMS had transported an accidental gunshot wound case five minutes before Morse’s arrival.

Morse is in stable condition but waits ninety minutes to see an MD who takes a quick history and orders a CT scan of his brain. He is still reporting symptoms an extreme headache accompanied by vertigo, common in a concussion. Both symptoms have increased in intensity since the accident.

Pain, in one form or another, is the common denominator in most disorders and usually constitutes the “S” in a SOAPPI analysis.

Pain — there may be nothing as complex, confusing, frustrating and fascinating as the phenomenon of pain and the even more ephemeral form of pain referred to psycho/emotional pain or “mental anguish.” Perhaps nothing has blurred line between appearance and reality as much as pain, or has caused as much controversy.

Witness the phenomenon of phantom pain (amputated limb pain) and psychosomatic pain or the claim that some people have “higher thresholds” of pain than others or the fact that it can take days or even weeks for some kinds of pain to “blossom”, while other pain emerges immediately after trauma. Or cases where the patient suffers a serious injury such as a compound fracture yet feels nothing at the moment of the trauma.

Until around the mid-20th century the prevailing medical model of pain was based Rene Descartes’s (EXHIBIT 13 – RENE DESCARTES) idea that pain emanated from the trauma site, travelled through the peripheral nervous system into the brain where the pain impulse was “manifested” and then recircuited to the affected body part, resulting in “pain” at the trauma site. Considering that Descartes wrote in the 17th century, 300 years in the history of science is an embarrassingly long time for a scientific idea to remain intact.

Today, the received wisdom is that pain is created in the brain by “neuron clusters” which register the pain as emanating from the traumatic injury, yet the signal does not return to the injured site. Contemporary neuroscience dispenses with the idea of pain reflection. Quite literally – the suggestion now is that pain is “all in your head.” See the OPPERA Study,
U.S. National Library of Medicine, National Institutes of Health @ Pub Pain’s etiology appears to still qualify as a scientific and medical mystery.

Of course, we have at our disposal objective tests to measure pain. A nerve conduction study or NSC measures the amount of electrical current flowing through nerves and can
detect nerve pathology (EXHIBIT 14 – NCS), but an NCS only measures the amount of electrical conduction. It doesn’t measure intensity or quality, or if psychosomatic – its etiology. NCS’s are especially useful in diagnosing Complex Regional Pain Syndrome, a potentially devastating neurological disorder, as well as carpal and cubital tunnel syndrome.

Pain comes in many sizes, shapes and forms, durations and expressions. It could be dull, sharp, or numbing pain. It can irritate, sting, is localized, radiates locally or permeates the client’s entire body. It could be sporadic, acute or chronic. It can disappear for years the making a roaring comeback. The only common denominator is its subjectivity.

Lawyers have devised a clever method to outflank the pain’s subjectivity. Ask clients the “Q1” and “Q2” questions: that is — what is the quality the pain – i.e. is it dull, sharp, tingling, etc. and the Q2 question which is the quantity or intensity of the pain – the pain’s rating on a scale of 0t to 10. Warn your client that this number must be conservative.

Ranking one’s own pain per se is absurd given that pain is entirely subjective. However, the exercise assumes some significance meaning when compared to the client’s medical treatment, when compared to other pain statements and especially when seen within context of the client’s behavior.

Most clients and patients unfamiliar with this rating scale will use it give themselves a higher rating than they actually have – “oh yes it’s at a 9 or 10 most of the time. Excruciating. Tell your client to drop the word excruciating from their vocabulary and warn them never to exaggerate.

Tell them to imagine ten as being on fire and one as a mosquito bite. The client usually regains his senses and rates the pain between four and six specifying different levels of the pain during different times of the day. Find the average. Don’t forget to ask him the level of pain they experience after taking any pain medication.

Caveat: the quantity of the pain must match the potency of the painkiller prescribed. If a patient claims her pain is a seven and her doctors only prescribed OTC ibuprofen — she loses
credibility. The more potent the pain reliever the higher the non – medicated Q1, Q2 product should be. The duration of the prescription combined with its potency could be quite compelling evidence of serious pain. For those clients opposed to taking pills on principle, remind them that if they do not follow their physicians’ instructions to the letter, they jeopardize their claim based on failing to mitigate damages.

As a rule, doctors don’t prescribe more potent controlled substances (opioids) until they exhaust lesser forms of pharmaceutical relief, depending on the nature of the injury, the clinical consistency and credibility of the patient’s reporting.

Most importantly, most importantly, pain functions as a litmus test of the legitimacy of the injury. If the level of the pain is unreasonable for the injury claimed or the pain’s “behavior” is inconsistent, then your client may be a malingerer, a drug seeker or both, seriously complicating your case.

So, a compelling indicator is the client’s behavior, his actus reus. If he claims an eight and the carrier catches him on video playing basketball, obviously you have a problem, and you have a duty to woodshed your client on the issue.

It used to puzzle me when the attending physician scribbled in the word “pain” accompanied by nothing else under the category diagnosis. Why would a physician, who, after four years
of undergraduate study, four years of grueling medical school study, boards, internships, residencies, and so forth diagnose “pain” as the disorder, when pain clearly falls under symptoms?

Well, I’ll tell you why: when the attending physician rates pain as both a symptom and a diagnosis, it means he has no idea what’s wrong with the patient. Nothing sinister is afoot. There’s not enough medical evidence to justify a conclusion. In other words, it too soon to tell. The case most likely needs more time to develop and/or objective testing.

Now, Morse’s CT scan of the brain was negative. The doctor diagnosed him with a concussion and recommended a follow up visit to his family physician. Standard concussion case probably followed by post-concussion syndrome.

A word about the ER. For many people, the ER serves as their primary source of care since they lack health insurance. Moreover, they lack access to a family doctor. And, as the medical profession becomes more and more specialized, the family MD is quickly becoming a relic, as specialized practice is far more lucrative.

By default, the ER becomes the medical point of entry for many, from the common flu to terminal cases. In addition to the ER, “Primary Care” offices have proliferated, what we sometime refer to “Docs in a Box”. These offices face the same lack of resources and
overcrowding problems as ER’s, and I have found that the care subpar. But the neighborhood “Doc in the Box” is inexpensive hence popular with insurance companies.
Bottom line: be sure to follow up ER and Primary Care Offices’ findings with doctors who enjoy more gravitas in the medical community.

As a result, ER’s and Primary Care offices are absurdly overcrowded — often with life threatening cases. late term pregnancies, etc. The ER is forced to function on a triage basis — i.e., treat the most serious cases first and stabilize the rest. Exhaustive, proper examination of non-life-threatening cases is generally out of the question.

So, let’s review. We have a forty-two-year-old male in prior good health, who suffered a head trauma. Vitals were strong. X-rays disclosed no skeletal derangement, and the CT examination of Joseph’s brain was negative. Joseph was subsequently diagnosed with a concussion and advised to follow up with his family doctor within the week. At that visit, Joseph still complained of very painful intermittent headaches accompanied by vertigo. His family doctor, who, by the way, was also the authorized physician per consent of the parties, diagnosed him with post – concussion syndrome and scheduled a follow-up.

At this stage the SOAPPI analysis seems to be coming along fine, but don’t regard as dispositive preliminary diagnoses offered by ER or primary care physicians. Although a preliminary diagnosis is often the correct one, it’s too early in the process to consider this

diagnosis final, especially when it comes to head and brain trauma. Symptom onset can be delayed, requiring time to “blossom.” And objective tests may fail to detect soft tissue damage, which is precisely what happened in Joseph’s case.

This is why our role as personal injury attorneys is so critical not merely to the financial well – being of our client but more importantly, to their physical well-being. We are often the first medically — oriented professional after the ER MD or the family MD whom the client sees, the one able to refer for proper testing and treatment all the injuries from which the client suffers. We have the opportunity to formulate an accurate and
complete treatment protocol despite insurance carriers’ resistance to “expensive” testing and multi-injury claims.

Moving on to the “O” part of the analysis—objective tests. The ER ran a plain X-ray film series as well as a CT scan of Morse’s brain.

What’s a CT scan? CT scans, computer tomography, takes multiple x-ray images along the axis of the injured body part. Then a computer arranges these slices in such a way to afford the physician a three-dimensional view of the relevant pathology. A CT scan is most effective in examining and diagnosing dense body structures impervious to plain film or digital x-rays.

CT scans are also inexpensive, making it an attractive diagnostic tool for hospitals, primary care centers, and over-worked ER’s.

CT’s present their own set of issues. First, it subjects the patient to a significant dose of harmful radiation. This can be especially deleterious to the young, so be careful with your children and exhaust other diagnostic options first. Second, CT scans are ineffective in diagnosing soft tissue structures, muscles, tendons, ligaments, and for our purposes with Joseph — damaged brain tissue.

Finally, doctors (non-radiologists) can find plain film x-rays and CT scans difficult to read, and often disagree about the results. In a trial, if I am attempting to enter an X-ray report

into evidence, I would not use any doctor short of an experienced radiologist to lay the foundation for its admissibility.

By the same token, if your opponent proffers radiological evidence via a medical professional without an MD, such as a chiropractor, object, and make the record for his opinion’s exclusion based on the fact he’s unqualified to give a such an opinion. The judge will probably overrule you, but you will have preserved the objection if you decide to appeal.

Practice note: a word about medical interrogatories, written questions to the treating physician or your retained expert requesting specific medical information vital to your legal case. (EXHIBIT 15 – MEDICAL INTERROGATORY). Base your interrogatory on SOAPPI and proximate causation and future medical experience which falls into the category of Prognosis. Attach a letter requesting the doctor to address relevant injured body parts. Name the body parts relevant to your medical theory to avoid confusion. In workers’ compensation cases I also ask what the probability is of the client experiencing a worsening of condition within one year.

Some doctors refuse to complete MI’s, and some are irritated by the request, that, or charge exorbitant fees. Try talking directly to the doctor if possible to allay their fears, impressing

upon her the importance of her role in the entire process. If that doesn’t work, simply subpoena her for a deposition.

Practice note: What if they resist efforts to schedule a depo? My practice is to initially work with the physician’s administrative staff. If they continue to ignore you, make certain you log your attempts and follow up with a letter. Always try to leave a paper trail in your case, regardless of the issue involved. If at a certain point it becomes clear a subpoena is necessary, issue one which indicates the depo will take place at your office, and explain to the complaining deponent that you tried to schedule the depo in an informal way to no avail.

Now, let’s move on to “O”. There exists a plethora objective diagnostics tests — blood chemistries, hematologic data, cerebrospinal fluid testing, urinalysis, and serous body
fluids testing to name a few others – procedures I’ll skip as many fine discussions of these tests already exist in greater and more authoritative detail — materials that will prepare you for that unavoidable in – depth examination you may have to conduct upon a seasoned physician at some point in your career. One fine resource is: DeGowins’s Diagnostic Examination.

In Joseph’s case, doctors have run two diagnostic tests and established the preliminary diagnoses or assessment, the “A” in SOAPPI– post- concussion syndrome. We now come to the P of the SOAPPI analysis: plan of treatment.

As far as post-concussion syndrome is concerned, there’s not much doctors can do except recommend rest and avoid stressful situations.

Morse followed his physicians’ advice and returned to work two weeks later post incident per a work restriction note. Don’t forget the note. Doctor’s often do and its incumbent upon you and your client to remind them to issue one. And remember in a workers’ compensation case it’s crucial that your client follow the authorized doctor’s instructions, unless there’s a dispute, or the defense will claim noncompliance and potentially destroy your case with the Commission.

Things were proceeding well for Morse. True, he suffered intermittent headaches and the occasional dizzy spell, but he could concentrate on his work which entailed reviewing
computer chip deliveries, supervising data entry once the chips corresponded with the bill of lading and reviewing, proofing and correcting various inventory documents.

Then about three weeks post – incident, after topping off his tank at a gas station near home, Morris suddenly felt overcome by nausea. Thinking that he was sick from the gas fumes, he began to walk away from his car when intense vertigo overwhelmed him, causing him to lose consciousness, fall, and strike his head again — this time against the gasoline island. He also suffered a laceration to the frontal area of his skull.

I demanded, in writing, that the carrier provide further examination and testing due to the latest incident only to be informed by the adjuster that she wished to clinch the case based on post- concussion syndrome. This raised a red flag in my mind because he hadn’t been released by the authorized doctor yet.

Practice note: It’s important that you give the carrier a chance to treat any new pathological developments as they occur. Demand the treatment in writing and give them two weeks to respond. If you receive a negative response or are ignored, then you’ll stand a better chance of winning the additional specials at a hearing if you must independently refer your client for treatment, provided the treatment is reasonable and necessary. Be sure attach, as an exhibit, the demand letter to your brief.

The carrier’s offer to clinch the case was not unreasonable based on a post – concussion diagnostic theory, but I felt it was premature to settle first because the client and not reached MMI and second diagnosis presented the anomaly of late stage vertigo and LOC and probably did not reflect the actual value of the case. I had to account for the anomalies. I could not find that LOC was a symptom of post – concussion syndrome.

Following his fall at the gas station, Morse was transported to Greenville Memorial Hospital. The responding physician reviewed his medical history, conducted a cursory physical and

verbal examination of Morse and corroborated the post – concussion diagnosis and that it
had caused the nausea, dizziness and loss of consciousness. He discharged Morse with a two week follow up order. The defense scored a point with this diagnosis.

If your medical theory is PCS, look for, first and foremost, headaches. However, this symptom can mislead the diagnostician in that many clients experiencing head trauma develop headaches because of cervical strain. Other symptoms of PCS include irritability, sleep disturbance, and for Morse’s case – dizziness or vertigo.

After further research into the characteristics of PCS, I decided to stick with it as a medical theory. Considering the negative tests and the unanimity of medical opinion, I left the LOC as an unaccounted-for anomaly, probably a result of the vertigo.

After the gas station fall, Morse’s symptoms settled into a predictable pattern of headaches, irritability, and vertigo with no accompanying loss of consciousness.

From a compensation point of view, the insurance carrier would later attribute the gas station incident as post intervening causation, and consequently was not liable for treatment and damages arising from that fall. I disagreed and argued that the gas station fall flowed directly from the post-concussion syndrome sustained in the original

MVA, and planned to support the theory with an independent medical evaluation.

A few weeks later, Morse suffered another LOC incident. This time more serious in its potential consequences. As he was parking his car into his assigned space at work, traveling approximately two miles per hour, he was again beset by vertigo and lost consciousness. His airbag failed to deploy when his car struck the parking barrier causing him to strike his head on the steering wheel. Of course, had this occurred under differing circumstances and speed, the incident could have been much more serious, potentially causing cataclysmic injury to himself or others.

Now the gloves were off. I prevailed upon the adjuster to refer Morse back to his original carrier-sponsored physician with the information I’d learned about the vertigo and LOC preceding the fall. The authorized doctor merely reconfirmed his diagnosis of PCS, and opined no further. There was no basis for additional testing.

But the LOC anomaly still didn’t make sense. LOC is not even a symptom of PCS. For me, there were only two explanations. Morse was losing consciousness due to an unrelated, coincidental, and undiagnosed pathology, or the PCS theory was wrong. I revisited the entire HPI.

This was my thinking process. I knew that some physicians sometimes refused to modify their original diagnoses fearing liability problems, and/or the insurance referral well drying up, regardless of the previous relationship they may have had with their patients. I’m not claiming that any of Joseph’s doctors were motivated by fear of liability, I want to make this clear, but as injury lawyers, we have a countervailing duty to perform our own medical investigations within reasonable parameters if the need arises.

I cannot stress enough that personal injury lawyers are not competent medical professionals. However, this does not mean that you abandon your critical faculties. And if you have alternate theories, discuss them with friendly, disinterested doctors to verify your ideas. Reap the benefits of more learned opinions and more extensive experience from your doctor friends.

I revisited to my research notes on Post-Concussion Syndrome, or PCS, and found it can be slippery diagnosis. Experts are still at odds as to the causes of PCS, especially in the diversity of its symptoms.

The condition is further complicated by the fact that its symptoms sometimes entangle with pre-existing non-somatic emotional disturbances such as anxiety, depression, sleep disorders, irritability, etc. thus masking the somatic etiology.

I was stymied and concerned by Mr. Morse’s case, going as far as to tell him not to drive for a while. Perhaps a EEG would turn something up. Then, one evening, as I was reading about delayed onset of muscle strain in swimmers, I wondered if delayed onset of symptoms could occur in non – muscular injuries.

Morse may have been suffering from a delayed onset pathology, compounded by the authorized doctors’ intransigence in revising their initial diagnoses. Perhaps another test would disclose a “late-blooming” pathology.

Skipping another consult with any authorized doctor, I unilaterally authorized an MRI of Morse’s brain, risking the cost and possible embarrassment of not first seeking a second opinion. That MRI, the first and only MRI in the case, indeed disclosed a condition that failed to appear on the X -Ray or CT post-collision – a bilateral subdural hematoma – a very serious, potentially life – threatening condition. It can cause clients to lose consciousness, especially dangerous to the driver and others. (EXHIBIT 16 – SUBDURAL HEMATOMA)

What is a bilateral subdural hematoma? In this case, Morse’s head originally impacted his head violently impacted the warehouse floor. Remember that the brain is essentially an orb-like structure floating in cerebrospinal fluid. As Joseph’s head hit the floor, his brain jolted to the front and then to the back of his skull — reflecting to the Newtonian principle that for every action there is an equal and opposite reaction. His brain bounced around more or less

like a ping pong ball until it settled down. Depending on the force of the collision, a human brain can suffer a series internal impacts.

The result – the same as when any soft tissue suffers traumatic impact, broken and burst blood vessels along with severed capillaries resulting in internal bleeding, or

hemorrhaging. It’s subdural because the injury lies beneath the dura, and bilateral because the impact affected both hemispheres Morse’s brain. Medical note: if the injured site is above the dura, it’s referred to as an epidural injury.

Joseph’s brain shad been lowly hemorrhaging immediately since his fall at the warehouse. With nowhere to go, the intracranial bleeding pooled, clotted, and created intracranial pressure which in turn pressure impeded blood circulation. The intracranial bleeding had been too incipient to be detected by the ER CT scan immediately post-accident, and I doubt a CT would have discovered it anyway.

The hemorrhaging and its sequalae were delayed. The lack of proper blood circulation resulted in oxygen deficiency, better known as hypoxia or “ischemia” which in turn caused the vertigo and LOC.

I referred Morse to the ER where he was immediately booked for emergency surgery to evacuate the clots. The adjuster authorized the surgery, a grisly procedure where the skull is longitudinally opened and pulled apart like a clam, so the surgeon can scrape out the clotted blood. In terms of damages, this exhibit clearly shows a subdural hematoma and you can imagine the medical distress the client suffers from the surgical procedure.

Morse withstood this procedure well, and I’m glad to report he’s back at work and doing fine the last time I spoke with him. Client care does not end when she leaves your office check in hand.

I eventually had to file a claim with the Workers’ Compensation Commission on Mr. Morse’s case as the carrier stuck by her guns regarding intervening causation. But the case settled quite well at mediation.

Practice note: there is no hierarchy to SOAPPI the framework is not exhaustive. The main rule in building your medical case is to be sensitive to contextualization – to be sensitive to medical and non-medical elements alike, and appreciate, build, and learn as many details as you can about the case. Medical and non-medical issues can overlap.

Another practice note: in the workers’ compensation cases the rules of evidence are relaxed and generally allow unfettered introduction of medical evidence. In tort litigation, carefully lay your foundations for introduction keeping in mind relevancy, confidentiality, hearsay, authenticity, and best evidence rules — carefully preparing your countervailing arguments for introduction or exclusion as the case may be—statutes, caselaw, and so forth.

So, what are the morals of this story? Well sometimes exercising your imagination is more effective than linear logic in reaching a correct conclusion. Allow yourself to freely associate to break out of the tunnel. Embrace the non-sequitur.

In 1862, August Kekule, a German chemist realized the ring shape of the benzene molecule after dreaming of a snake eating its tail. See Wikipedia: August Kekule, German Chemist. In other words, there’s more to problem solving than inductive and deductive reasoning. Even the panoply of today’s esoteric logic systems, Mathematical, Boolean, etc., must owe their existence to ultimately to the human imagination.

As you study the medical records in your case (and certain you have a complete set by verifying them with your client) be sensitive to possible differential diagnoses based on internal and external inconsistencies and/or anomalies before jumping to conclusions. Use extracurricular resources to familiarize yourself with a medical topic otherwise foreign to you.

But I think the Morse case was solved by sheer stubbornness — sticking to a strategy of objective analysis, never uncritically accepting experts’ conclusions. It’s this critical capacity and tenacity that you as personal injury lawyers should cultivate to competently meet one of the major duties to your client – aiding her doctors in her cure and helping her reach MMI as soon as possible.

Thank you for your kind attention.
Thomas M. Gagne, Esq., Greenville, S.C., November 9, 2017