DOES LITIGATION INFLUENCE THE OUTCOMES OF SURGERY IN THE WORKERS COMPENSATION ARENA? No conflicts of interest

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1 DOES LITIGATION INFLUENCE THE OUTCOMES OF SURGERY IN THE WORKERS COMPENSATION ARENA? No conflicts of interest Jayantilal Govind MBChB (Cape Town). DPH. M.Med (Syd) FAFOEM. Director & Senior Staff Specialist Occupational and Pain Medicine ACT The Canberra Hospital Canberra

2 Law Rules of evidence Beyond reasonable doubt Case law Heresy Circumstantial evidence Medicine Evidence based medicine Clinical epidemiology Logical Rational Biologically plausible Confounders Back pain is an illness in search of a disease Williams ME, Hadler NM. N Engl J Med 1983;308:

3 Low back pain is to workers compensation, As neck pain is to the auto insurance industry. W.O. Spitzer For occupational back injury, the evidence that such injuries actually exist is slight or often nonexistent Malleson A, The Enigmas of the Human Spine (2002)

4 In the beginning Compensation Neurosis Accident Neurosis Y POOR The Prevailing Notion / Expectations O U T C O M E S GOOD NO GOOD NO LITIGATION YES X Irrespective of treatment

5 Y The Prevailing Notion / Expectations POOR O U T C O M E S GOOD NO GOOD NO LITIGATION YES X Irrespective of treatment The Prevailing Notion /Expectations Y Irrespective of treatment POOR O U T C O M E S GOOD X NO YES LITIGATION

6 Reasons proffered include secondary gain, the pursuit of financial gain, psychological disturbances, or are symptom magnifiers. The evidence however is sparse inconsistent, ambiguous, and, confounded by a large number of unaccounted variables, such as

7 THE EVIDENCE? Confounded by: incorrect diagnosis, financial strain 4 inappropriate treatment and iatrogenesis 1 severity of injury 4 complications of treatment 2,3 bias in reporting 6,7 stress of litigation 4,5 physician bias 8 mistrust by medical personnel 4 outcome expectations 9 1. Balla JI, Moraitis S. Med J Aust. 1970, August 22: Bednar JM, et al. Clin Orthop Rel Research. 1998; 351: Greennough CG et al. Clin Orthop Rel Research 1994; 300: Swartzman LC et al. Spine 1996; 21: Atlas SJ et al. J Bone Joint Surg 2000; 82-A: Callaham ML et al. JAMA 1998; 280: John Flint winner, The Walkley Award,2005. West Australian Sunday Times, Doctoring Compo-The Real Cheats Exposed. Google.Accessed Lipton RB et al. Neurology 2003; 60: Rainville J et al. Spine 1997; 22: WA Sunday Times Walkley Award 2005

8 Harris I, Mulford J, Solomon M, van Gelder JM, Young J. Association between compensation status and outcome after surgery. A meta analysis. JAMA 2005; 293: ,278 publications Only 4 that were randomised None were blinded. Most studies - considerable heterogeneity (p. <.001) Major confounders: publication bias selection bias differences in disease severity Likely that that the negative effects of litigation may have been over represented in observational studies. Studies showing no difference between compensated and non-compensated patients Brachial plexus lesion (8) (1997) Carpel tunnel decompression (7) (1999) Anterior cervical fusion (10) (2002) Ulnar nerve transposition (6) (2002) Arthroscopic arthroplasty (9) (2003)

9 Are not mentioned Curtin University 2001 Does Workers Compensation influence recovery rates? A critical review of the literature

10 Findings: Negative attitudes and biases of health professionals Lack of knowledge or commitment to injury management Secondary gains of service providers abnormal treatment behaviour Complex paper work delaying treatment Unavailability of suitable duties Disillusionment with system The influence of legislation on outcomes Suspicion and dissatisfaction with service providers Poor outcomes associated with prolonged exposure to non-proven treatment Limitation in methodology and data analysis The effect of legal representation and litigation are contradictory and equivocal Lack of consistent standard criteria between studies No controlled studies Findings: Negative attitudes and biases of health professionals Lack of knowledge or commitment to injury management Secondary gains of service providers abnormal treatment behaviour Complex paper work delaying treatment Unavailability of suitable duties Disillusionment with system The influence of legislation on outcomes Suspicion and dissatisfaction with service providers Poor outcomes associated with prolonged exposure to non-proven treatment Limitation in methodology and data analysis The effect of legal representation and litigation are contradictory and equivocal Lack of consistent standard criteria between studies No controlled studies

11 Price Waterhouse Coopers 2001 Legal Aspects Perceived advice to follow treatment plans Stressful/uncertain/lengthy process The skill of the lawyer The skill of the claimant as a witness and not the severity of the injury Judges who hold different views on work injuries Does the nature of treatment generate. Positive or Negative outcome.. irrespective of litigation?

12 Surgery chronic low back pain Greennough CG, Taylor LJ, Fraser RD. Anterior lumbar fusion: a comparison of noncompensation patients and compensation patients. Clin Orthop Rel Research 1994; 300: Characteristics N WCC Non-WCC AIF Psych Disturbance 51?? Fusion Single level 87?? Multi-level 64?? Instrumentation 30?? Complications 30?? Patients with complications 26?? Additional surgery 24?? Failed fusion 30% 38% 11%

13 Hodges SD,Craig-Humphreys S,Eck JC, Covington LA, Harrom H. Predicting factors of successful recovery from lumbar spine surgery among workers compensation patients. JAOA 2001;101:78-83 Characteristic N Microdisc Fusion Operated 87 Follow up Oswestry VAS Return to work 72% 43% SF-36 Physical Functioning Bodily pain Mental health (p=<05) IDET catheter inserted into disc

14 Comparative analysis of insured and noninsured patients undergoing IDETA for IDD Characteristics N WCC Non-WCC Inception cohort Follow-up 32?? Discograms: +ve single level 24?? +ve 2 level 10?? Ref: Mekhail et al; Pain Pract 2004; 4: IDETA WCC Non-WCC Pain Relief Pain Relief 100% % <50% 100% % <50% Number Working Opioids Success 9 10 ns Failure 8 8 Fusion 2 2 Karasek M, Bogduk N. Twelve-month follow-up of a controlled trial of intradiscal thermal anuloplasty for back pain due to internal disc disruption. Spine 2000; 25:

15 Chronic neck pain Engineering Design & Safety Insurance Institute for Highway Safety

16 Kaneoka et al Spine 1999;24: Swartz EE. J Athletic Training 2005;40:

17 #superior articular process haemarthrosis Courtesy: Prof J Taylor, Perth Nerve blocks Identifies the nerve that mediates the pain Infers the anatomical source of pain Knowledge of neural pathways

18

19 CERVICAL RF NEUROTOMY Characteristics Litigants Non-Litigants Number Followed VAS Pre-RF months VAS = 0 50% 61% Satisfaction 97% 100% Opioids - 52% - 50% ns ns Sapir DA, Gorup JM. Radiofrequency medial branch neurotomy in litigant and nonlitigant patients with cervical whiplash. Spine 2001;26:E268-E273. CERVICAL RF NEUROTOMY Status N Success Failure Duration of Relief (complete median days relief) (interquartile range) Litigation No Litigation ( ) (632 1,125) P McDonald GJ, Lord SM, Bogduk N. Long -term follow- up of patients treated with cervical radiofrequency neurotomy for chronic neck pain. Neurosurgery 1999; 45:61-68

20 CERVICAL RF NEUROTOMY Status N Success Failure Duration of Relief (complete median days relief) (interquartile range) Litigation No Litigation ( ) ( ) P Govind J, King W, Bailey B, Bogduk N. Radiofrequency neurotomy for the treatment of third occipital headache. J Neurol Neurosurg Psychiatry 2003; 74:88-93 Irrespective of litigation Positive outcomes are achievable 3 independent and unrelated studies show that Litigation makes no difference when proven z joint pain is treated with RFN

21 WORSE fusion O U T C O M E S discectomy Irrespective of litigation IDET RF EQUAL NO TREATMENT WORKS YES POOR FUSION O U T C O M E S discectomy GOOD IDET RF no YES no YES LITIGATION TREATMENT WORKS Despite treatment Despite litigation

22 Conclusion Observational studies have a tendency to over-represent negative outcomes Qualitatively, studies are confounded by multiple variables including bias, lack of comparative data and iatrogenesis There are no controlled studies to validate the prevailing view that litigation promotes negative outcomes

23 Observational studies have a tendency to over-represent negative outcomes Qualitatively, studies are confounded by multiple variables including bias, lack of comparative data and iatrogenesis There are no controlled studies to validate the prevailing view that litigation promotes negative outcomes Observational studies have a tendency to over-represent negative outcomes Qualitatively, studies are confounded by multiple variables including bias, lack of comparative data and iatrogenesis There are no controlled studies to validate the prevailing view that litigation promotes negative outcomes

24 Correct treatment Correct patient Better outcomes Irrespective of Litigation.

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