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 Med.gov. 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

White Paper: Litigation And Hearing Preparation And Strategies

White Paper: Litigation And Hearing Preparation And Strategies

Written by Thomas M. Gagne, Esq. for The National Business Institute


I want to turn your attention now to litigation and hearing strategies. If you are preparing for hearing you should already have a solid legal and factual theory of your case. You should also have your sub theories solidified, i.e.: your theories of liability, proximate causation, damages and future damages, etc. Upon receipt of the hearing notice, make sure you have all the pertinent medical records of which you are aware. As I stated before, you will not necessarily have all the records if the opposing counsel discloses in his pretrial brief other records you and your client are unaware of that she’s planning to introduce. Remember, as the claimant, your brief is due 15 days before the hearing well the defendant’s is due 10 days before the hearing. (more…)

White Paper: Litigation And Hearing Preparation And Strategies

White Paper: Winning Strategies and Tips in Workers’ Compensation Practice/Selected Issues

Written by Thomas M. Gagne, Esq. for The National Business Institute


Thomas Gagne has practiced workers’s compensation and personal injury law in Greenville and Spartanburg South Carolina for seventeen years. He holds a B.A. from Cornell having studied literature and philosophy and is an alumnus of SUNY Buffalo Law School and Harvard Business School. He is a former JAG prosecutor and Special Assistant United States Attorney attached to Fort Jackson South Carolina. He also served as an assistant solicitor for Richland and York Counties. Tom was recently selected as a Top 100 Trial Attorney by the National Trial Lawyers as well as a Premier 100 attorney by the American Academy of Trial Lawyers. (more…)