ORDER IN THE COURT Playing by Society's Rules. Managing an Effective Personal Injury Practice. By Shawn Steel, Esq.

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1 ORDER IN THE COURT Playing by Society's Rules Managing an Effective Personal Injury Practice By Shawn Steel, Esq. Whether you see one new personal injury (PI) case a month or several score, an effective personal injury practice now requires greater sophistication. Insurance companies, particularly State Farm, have declared war against the "soft tissue" case. Especially important are the insurance industry's efforts to deny that injuries exist in lower impact auto cases. This article is written from an attorney's perspective and primarily is concerned with the legal issues of chiropractic management of personal injury work. Low Impact Injury Cases Doctors all over the country are reporting a dramatic reduction in the number of personal injury cases compared to the robust '80s. There are many theories to account for this, but the chief reason seems to be a combination of points. Although no states have approved any form of no-fault legisla tion since the 1970s, insurance companies have dramatically increased the pressure against attorneys who handle low-impact auto cases. Many carriers willingly spend three times the original costs to litigate a claim, rather than settle a small claim for less money. In fact, a recent consensus by lawyers from the National Association of Chiropractic Attorneys (NACA) revealed that insurance companies are spending large sums of money throughout the country to fight low-impact cases, rather than paying customary settlements. This strategy initially was quite expensive. However, insurance companies have reaped great benefits by reducing claims. The Judicial Council for the California Supreme Court is charged with publis hing a detailed survey of the different types of cases filed each year. In 1987, some 137,379 motor vehicle accidents (MVAs) were filed throughout all 58 California counties. In 1993 that number was reduced dramatically to only 88,346 MVAs filed. Most attorneys and health-care providers are unaware of the dramatic decline in the number of California MVA accident claims. Reasons for the reduction include the fact that individuals now are not as likely to file claims for minor damages because of the delays and frustrations of court litigation. Also, juries throughout the nation are showing a more conservative attitude by awarding smaller damages or even no damages in what they consider to be "nuisance" claims. Chiropractic physicians still are responsible for treating those people who claim injuries, but some are discovering that they may not receive any payment for the case if it does not do well in court. Moreover, if they fail to negotiate a claim and are faced with having to go to court, many attorneys arbitrarily drop the case and abandon the unsatisfied chiropractic bill. In MVA litigation cases, many insurance companies opt to employ the services of an auto accident reconstruction expert. Recently, in surance companies have spent great sums of money for these individuals who attempt to prove that the G forces involved in an accident were so minimal that the victim could not possibly have been injured in the impact. For example, in a case involving a low-impact accident, it is important to consider the following factors in challenging the

2 defendant's assumption: What were the relative sizes of the vehicles? Is the patient's car seat broken or bent as a result of the accident? Was assistance rendered by paramedics, or was an emergency room visit necessary? Is the patient an older person, and therefore not easily able to sustain an impact of this type? Is the patient tall, and was the head restraint positioned in a way that aggravated a neck injury through a "ramping" hyper-flexion injury? Was the patient aware of an impending accident, or was he or she relaxed and completely taken by surprise? Did the patient strike any part of the car with his or her body upon impact? Even if the patient's vehicle was not severely damaged, to what extent was there damage to the defendant's vehicle? In the case of the low-impact accident, of particular significance is the question, "Was the plaintiff's vehicle pushed forward as a result of the collision?" Steven Fullmer, DC is a full-time police officer and auto accident reconstruction expert in Huntington Beach, Calif., investigating auto accidents for the local police department. Dr. Fullmer reports that a victim can suffer severe injuries in so-called "low-impact" collisions if he or she is stopped in traffic and the car is rear-ended and pushed forward in traffic even as few as three feet. Dr. Fullmer is able to calculate the patient's G force based on crush damage, the distance the patient's vehicle was pushed and the relative vehicle weights. He reports that thorough questioning can reveal whether or not the patient's glasses flew off in the impact, or if a briefcase went flying through the cabin of the car. These and other details help to create a more accurate picture of the mechanism of injury. Because the insurance companies have raised the bar for collection in low-impact MVAs, it is necessary for chiropractors to prepare more thorough and professional reports and to record more complete histories of their patients. The risk for chiropractors of non-payment in low-impact cases has grown dramatically in the last six years. Careful study of the works by Croft, Foreman and Murphy are crucial to proper handling of the low-impact personal injury case. Dr. Lawrence Nordhoff, Jr. recently published a breakthrough text, referencing over 10,000 MVA studies, titled, Motor Vehicle Collision Injuries: Mechanisms, Diagnosis & Management. In this author's opinion, it is the best one-volume comprehensive book explaining the nexus between collisions and injuries. Major Trauma Cases Moderate to high-trauma cases still deserve large awards if properly managed by the chiropractor.,.doctors of chiropractic are not trained to evaluate a patient's case value, nor should they try to do so. However, they should be aware of the correct protocol to assist a patient through the treatment of a high-trauma case. It is important to recognize some general features about the high-trauma personal injury case and to remain in close contact with the patient's personal injury attorney. Tort state jurisdictions. In over 35 states, the chiropractic patient can sue a negligent party for damages. Liability becomes the crucial issue in determining whether or not the patient will recover. As a general rule, health-care providers are not encouraged to investigate the liability issue of a case. Common sense usually tells the doctor of chiropractic whether the patient's claim is good or bad. A police report is helpful in revealing the details about who or what was cited as being the cause of an accident. Any doubts on this matter should be resolved by the lawyer. The three most dependable, good liability cases continue to be the rear-end collision, cases where the defendant runs through a stop sign and cases where a witness verifies that the defendant violated a red light. Most other types of MVAs usually require more evidence showing clear negligence. It is important for DCs to be aware of and to earmark those cases with only marginal liability value, so they do not suffer the consequences of a drastically reduced bill later on. If the attorney involved is not certain about the quality of the case, the DC should continue to frequently question the attorney until he or she feels satisfied that the claim has merit. Otherwise, the doctor may wish to make new financial arrangements with the patient, including a cash co-payment for each treatment. If the patient is not willing to consider such an arrangement, then in cases of questionable liability the chiropractor should not commit his or her resources for that patient-unless he or she wishes to run a "free clin ic." No-fault jurisdictions. No fault states permit the patient to avoid zero compensation if the injuries meet a certain threshold. In New York state, for example, if a chiro practor can show that a serious or permanent injury has taken place, often involving a bulging

3 disc, then the patient is entitled to receive personal injury benefits, including pain and suffering. In those cases, however, it is still important to prove the negligence of the defendant. Measuring Damages Understanding the degree of the patient's injuries is part of taking a good history. Unfortunately, some doctors permit their assistants to take their patients' medical histories and so do not possess a complete knowledge of the case. During a trial, it is embarrassing when the jury realizes that a doctor is not familiar with facts crucial to an accurate understanding of the patient's case. Chiropractors should always personally take their patients' medical histories, since this information becomes part of the doctor s expertise as a bio-mechanical specialist. Furthermore, in taking the history an effective bond is created between doctor and patient as they work together toward swift resolution of the injury. When taking a history, the chiropractor should not focus on liability. Rather, he or she should be aware whether or not the case has liability problems and whether the injury is logically connected to the mechanism of injury. When creating a patient's file, the chiropractor should carefully itemize each specific complaint his or her patient makes. This is particularly important in cases involving moderate to severe injuries. All too often doctors restrict their attention and their comments to the spine. Legally, chiropractors are primary health-care providers responsible for a patient's whole body care. It is important for the doctor to take immediate responsibility for their patients' injuries, identifying and referring patients with fractures, scars, chipped teeth or close head injuries to the appropriate medical specialist. Often, a timely referral can bring relief to the patient, protect the chiropractor from malpractice exposure and add great value to the liability case. By itemizing the patient's complaints from head to toe, the chiropractor can ensure that key facts will not be omitted. Patients should be questioned about their memories of the symptoms they suffered within the first 24 hours following the accident. More information on the subject may be elicit ed from family members, para medic reports or emergency room records. In recording these in the patient's file, the DC should reiterate the specific complaints which the patient made during the first office visit. Generally, doctors and other health-care providers are not known for their effective writing skills, especially when writing in narrative form. This author suggests that an outline form be used, since it is more organized, less time -consuming and helps to provide more factual evidence about the patient's case. X-Ray Interpretation If the patient's injury is considered moderate to severe, it is almost always essential to ask a chiropractic radiologist to review the film for a second opinion. Most DCs are too busy to read an X-ray effectively for litigation purposes. In addition to securing extra malpractice protection for no extra charge, a second opinion helps to create an effective, credible record for the personal injury case. Numerous chiropractic radiolo gists throughout the U.S. perform outstanding work in this area and can receive the X-rays and provide fast interpretations at a reasonable cost. These specialists should be intimately involved in high-trauma Injury cases. Collaborative Care The Mercy Guidelines highly recommend that chiropractors refer their patients to medical specialists under the appropriate circumstances. Personal injury cases are some of the most obvious cases where such referral is beneficial. I recall a case involving a young musician whose vehicle was thrown onto the side of the road in a collision, fracturing his right thumb. After an orthopedist set his thumb, the musician's hand was immobilized for a long period of time. The musician's chiropractor provided no therapy for the injured hand, but concentrated on the musculoskeletal problems, as was appropriate. He created a detailed report discussing the musician's limited ranges of motion relating to his lower spine. Unbelievably, the chiropractor completely omitted any discussion of the fractured thumb. The patient was part of a successful band which held a recording contract, and he lost considerable sums of money as a direct result of the accident. However, claims for loss of earnings (LOE) are very difficult to verify unless the primary care doctor discusses the key injury. Furthermore, the doctor must substantiate any LOE disability. In this case, the chiropractor failed to discuss the key injury in the patient file or to verify the LO E. In another case, a doctor failed to note that the patient had lost two front teeth as the result of an automobile accident. Instead, he dis cussed only the patient's neck and shoulder pain. When asked why he omitted any notation of the key injuries, he responded that he was not a dentist. Omissions such as these border on malpractice. All jurisdictions require chiropractors to give a diagnosis which may include areas beyond his or her individual specialty. If the injury involves scarring, dental, psychological or neurological symptoms, an appropriate referral should be made. In all cases, the chiropractor should concentrate on expanding their focus from strictly musculoskeletal problems to take into consideration the whole-body condition of the patient. Seeking the Appropriate Specialist Many doctors do not refer their patients because they do not know of the correct medical specialist. In the past, chiropractors often were afraid of being burned by medical doctors whom they believed they could trust but who either would steal the patient away or attack the chiropractic profession. Those days are rapidly fading. In fact, the new generation of medical doctors often are more openminded about the results which chiropractic can achieve. Medical doctors throughout the country are approaching DCs for closer collaboration. It is the responsibility of the chiropractor to locate the appropriate specialist for a patient in his or her own community. To do so

4 may require some use of the DC's marketing and networking skills. Dependable methods used to expand the chiropractic/medical network include: "open house" clinics for medical doctors in the community; establishing a dialogue with a patient's medical specialist; consulting other DCs for the names of pro-chiropractic MDs and asking attorneys for MD contacts. It is important to get to know the medical doctors in your community personally. Spend time with them so that they understand what you do and what you require. It is also important to develop a rapport with an MD by referring quality cases where there is a high like lihood of receiving payment. As an additional benefit of the referral, you can expect to receive similar referrals to your clinic, as well as substantial malpractice protection. Medical doctors who refer their own patients to a chiropractor are less likely to encourage litigation against a DC. Putting a Price Tag on Soft Tissue Cases By gaining insight into attorneys' methods of evaluating the liability value of a case, chiropractors can better understand how they can make themselves more effective and credible links in PI cases. In general, chiropractors who adjust and treat patients with handson therapy get their bills paid. These doctors are almost always regarded as more credible than the doctor who relies too much on expensive and unnecessary diagnostic devices. Many diagnostic devices used by the chiropractor are expensive and provide no benefit to the PI case. As a rule, it is preferable for an EMG or an MRI to be admin istered outside the chiropractic office. Figure 1 contains two bills wh ich have the exact same total, but which make very different impressions when used in court. Most attorneys consider any chiropractic bill for soft tissue injuries which is more than 25 percent diagnostic to be "flabby" and difficult to defend. Examples of diagnostic expenses include limited evaluations, X-rays, muscle testing, surface EMG or any of the newer, fashionable and expensive devices marketed to chiropractors. There is virtually no charge better than a chiropractic adjustment to create a lean, credible personal injury bill. Figure I-Sample bills. PI evaluation formula. Figure 2 contains an evaluation sheet indicating the four major criteria for many MVA evaluations. While this form is not an absolute guarantee for determining the liability value of a case, it can be helpful for attorneys in determining a figure for negotiations prior to the start of lit igation. The form first considers damage to the vehicles involved in the collision. Obviously in most cases, the greater the damage to the car the greater the likelihood of damage to the occupant. Other factors include the age of the cars, the relative expense of the cars and the precise angle of the damage. Whether or not the car was towed from the scene and the proximity of the impact to the patient's body are also important factors. Next, quality of liability is crucial. This information is especially crucial in jurisdictions where juries may make awards based on percentages of fault. It is the job of the attorneys to evaluate this factor; clearly, if both the plaintiff and the respondent have two witnesses, then the ultimate value of the case will always be compromised. The next step in the attorney's evaluation is to determine whether the bill is "hard" or "soft." A hard bill is one that has a low

5 diagnostic treatment ratio (DTR). Soft bills include excessive daily charges, excessive modalities usage and excessive frequency or duration of care. The more aggressive the chiropractic bill is, the less value it has on the settlement of the case. Finally, any residual symptoms existing when the patient was released from care are considered. The more unresolved problems requiring future care, the greater the value of this information to the case. Chiropractors like to think that they are going to resolve all the patient's complaints, and most of the time they do. However, once the patient is discharged from chiropractic care with a notation of a "complete" cure, it is nearly impossible to reopen the case later if an aggravating or resulting condition does develop. Therefore, chiropractors should be exceedingly cautious in declaring any patient "completely symptom-free," especially in serious trauma cases. Liability Car Damage Residuals Fair Bill Excellent (5) Very Heavy (6) Continuing problem (6) Very Reasonable (6) Heavy (5) Slight residuals (5) Reasonable (5) Good (4) Fair (4) No residuals (4) Fair (4) Split (3) Light (3) Injured areas: High (3) Questionable (2) None (0) Very high (2) Witness: Amount: Amount: Tristar report Location: Diagnosis: Treatment: Police report: Complaints: Cost per treatment: Loss of Earnings: Car Rental: Deductible: Other:? Did the defendant pay for the property damage?? Was the defendant cited in the police report?? Was there a delay in the treatment? How long? Formula: 1) Assign values 2) Total values 3) Divide by 6 4) Multiply meds for goals Figure 2-Evaluation sheet. Personal injury cases are a part of nearly every chiropractor's practice. By understanding the legal ramifications of these cases, DCs can ensure that they will better serve their patients by creating an accurate, detailed and legally sig nificant patient file. In addition, wise and conservative management of PI cases can help to expand every chiropractor's role in trauma care. References 1. Croft. Whiplash Injuries. Baltimore, Md.: Williams and Wilkins, Foreman, SM, Stahl, MJ, Sportelli, L. Medical-Legal Issues in Chiropractic. Palmerton, Pa.: Practice Makers Products, Inc., Lawrence. Motor Vehicle Accident Collision Injuries: Mechanisms, Diagnosis & Management. Gaithersburg, Md.: Aspen Publishers, 1996.

6 Shawn Steel, Esq. is a trial attorney with Shawn Steel & Associates in Beverly Hills, Calif. He is also an assistant professor of ethics and jurisprudence at Cleveland Chiropractic College of Los Angeles. Journal of the American Chiropractic Association/March 1996

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