Format Clinical Features Connecting The Dots
Personal injury cases have two components: a healthcare component and a legal component. Much of the legal component of a personal injury case is hinged upon the records of the healthcare provider. The healthcare records are often thoroughly reviewed. Accurate and complete healthcare records will protect the legal component of a personal injury claim. In contrast, healthcare records that are inaccurate will hurt the legal component of the case.
What is the patient’s diagnosis?
A diagnosis is a guess as to what is wrong with the patient. It is the treating doctor’s best guess as to the root causes of the patient’s symptoms and signs. As more information is obtained, the diagnosis will often change or be confirmed. For example, the doctor will probably suspect a discogenic L5 nerve root radiculopathy when a patient presents with low back and unilateral leg pain that extends below the knee, and examination shows a positive straight-leg-raising test at 35°, weakness of the extensor hallicus longus muscle, and hypoesthesia in an L5 dermatomal pattern. The diagnosis is confirmed when an exposed MRI shows a posterolateral L4 disc herniation compressing the L5 nerve root.
Also, for the legally defined expert treating doctor, the diagnosis falls under the standard of reasonable probability. As an example, it is often claimed that the cause of back pain is actually unknown or unproven in 85% of cases (Chou). Yet, essentially no healthcare providers list the diagnosis as “unknown.” Therefore, doctors often list a diagnosis based on reasonable probability. Seattle personal injury attorney Richard Adler (Adler) often defines reasonable probability as a 51% or greater chance of accuracy. I have heard him say often that the personal injury-treating doctor who has qualified as an expert to testify should be 100% certain that their opinion is at least 51% accurate. As an example, published studies (Kuslich) indicate that the tissue origin of pain in chronic low back pain patients is the annulus of the disc is more than half of the cases. This constitutes a reasonable probability. Another example is that published studies (Bogduk) indicate that the tissue origin of pain in chronic whiplash-injured patients is the facet joints in more than half of the cases. This also constitutes reasonable probability. A third example indicates that if a whiplash-injured patient had pre-accident degenerative joint disease of the cervical spine, follow-up x-rays taken 7 years later indicate that 55% developed degenerative disc disease at adjacent levels (Hohl); one could state that patients with pre-accident degenerative joint disease of the cervical spine who sustain a motor vehicle collision injury, will have a reasonable probability of developing disc degeneration at an adjacent level within the next seven years.
An actual example is a court case I testified in with an experienced personal injury attorney. This attorney thoroughly explored my opinions during my direct examination. After direct examination comes cross-examination by the insurance company attorney. His attempt to discredit me proceeded as follows:
QUESTION:
What is in your hand?
ANSWER:
A cup.
QUESTION:
What is in the cup?
ANSWER:
Water.
QUESTION:
Are you certain?
ANSWER:
Yes.
QUESTION:
Can you state with the same degree of certainty that you have a cup of water in your hand that the testimony you gave during your direct examination is accurate?
OBJECTION (by the plaintiff attorney who had just completed my direct examination):
[He] is holding the doctor to a standard that is not the law. The standard is to a reasonable probability, a 51% chance or greater, not to 100% certainty.
JUDGE:
Sustained.
ANSWER:
I state with the same degree of certainty that I have a cup of water in my hand that the testimony I gave is reasonably probable.
It is not below the standard for a diagnosis to be incorrect, as long as it is consistent with the evidence presented in a particular case. The classic evidence collected in a whiplash injury (or in most musculoskeletal cases) includes the history, the complaints, the examination findings, and imaging, such as x-rays, stress radiographs, videofluoroscopy, MRI, CT scan, etc.
Because treatment is designed to improve the pathophysiological process expressed in the diagnosis, appropriate treatment should improve the patient’s symptoms and signs. When expected improvement does not present, it is possible that the diagnosis was incorrect. Additional diagnostic investigations or possible referral to another provider is warranted.
In our electronic age, the clinical diagnosis is a numerical code or codes. Statisticians, policy makers, politicians, governmental agencies, reimbursement assessment personnel, electronic billing services, etc., like and even demand, these numerical diagnostic codes. It makes it much easier to evaluate and control the health care provider and the case. It makes it much easier to create policy and establish “outcome evidence.” These codes create simplicity.
However, what if the simple code is purposefully or inadvertently inaccurate? What if the health care provider used codes that have historically proven to generate better reimbursement rather than codes that more accurately represent the patient’s true clinical status? What if the health care provider had some educational gaps or lack of educational understanding of certain physiological processes and consequently used an incorrect diagnostic code? Then statistics, policies, and “outcome evidence” would all be erroneous.
In addition, and quite importantly, the convenience and simplicity of diagnostic codes may over simplify the true extent or uniqueness of a particular patient’s injuries. This scenario is particularly adverse for a patient with a personal injury because it could influence aspects of the legal component of the patient’s case.
I have a friend who is both a chiropractor and a personal injury attorney. As a personal injury attorney, he has worked for both the plaintiff (for our injured patient) and for the defense (for the insurance company of the person who caused the injury to our patient). He has repeatedly expressed to me that the most prevalent “weak link” in a personal injury case treated by health care providers is the diagnosis. It is his position that as a rule, the diagnosis in the file or in the insurance billing forms is not supported by the history, complaint, examination findings and/or imaging studies. My friend has often expressed to me that he can discredit most health care providers by officially asking them a handful of questions pertaining to their diagnosis. In fact, my friend says that when discrediting the expertise of the treating doctor, probing the details and accuracy of the diagnosis is so simple and effective, that it is his standard starting point, and often the only process the doctor will have to endure before loss of credibility is assured.
Most health care providers use multiple diagnoses on every patient. Consequently, for a whiplash-injured patient, words (or codes) such as sprain, strain, myofascial pain syndrome, intervertebral disc syndrome, facet syndrome, radiculitis, radiculopathy, neuritis, neuropathy, nerve compression syndrome, headache, cervicogenic headache, subluxation, instability, carpal tunnel syndrome, thoracic outlet syndrome, double crush syndrome, myelopathy, cauda equina syndrome, fibromyalgia, etc., are commonly found.
For each and every word used in the diagnosis, the health care provider should be able to do the following:
EXAMPLE 1, Strain:
QUESTION:
Your diagnosis includes strain injury to the posterior cervical-thoracic spine. What is a strain injury?
ANSWER:
The soft tissue that moves bones are muscles. Muscles are attached to the bone by tendons. A strain is an injury to a muscle or to a tendon. A strain injury is considered to be a soft tissue injury because it does not involve injury to the bone.
QUESTION:
What history is consistent with a strain injury?
ANSWER:
There are three classic historic mechanisms for a strain injury:
1) A mechanism of overstretching. The injury occurs at the extreme of motion.
2) A mechanism of muscle contracting against a load that is too great for the muscle. The injury occurs in the middle of the range of motion.
3) Unaccustomed repetitive contracting of a muscle. The injury occurs in the middle of the range of motion.
QUESTION:
In this case, was one or more of these mechanisms documented through the taking of the patient’s history?
ANSWER:
Yes. The history is that of a whiplash mechanism, which is a classic example of muscle overstretching.
QUESTION:
What are the clinical features of a strain injury?
ANSWER:
QUESTION:
Can you please show me where these clinical findings are documented in your records?
ANSWER:
[You had better be able to do this, show him/her where the clinical features are documented in the records].
EXAMPLE 2, Sprain:
QUESTION:
Your diagnosis includes sprain injury to the facet capsular ligaments of the lower cervical spine. What is a sprain injury?
ANSWER:
The soft tissue that stops the movement of a bone at the joint is the ligament. Ligaments attach bones to bones at the joint. If the joint is moved too far, the ligament is injured. This injury to the ligament is called a sprain. A sprain injury is also considered to be a soft tissue injury because it does not involve injury to the bone.
QUESTION:
What history is consistent with is a sprain injury?
ANSWER:
Ligaments are not injured in the middle of the range of motion. Rather, ligaments are only injured after the end of the range of motion is reached, and then motion exceeds the normal end of the range of motion. A history of exceeding the normal magnitude of range of motion is necessary for a sprain injury.
QUESTION:
In this case, is there a history of exceeding the normal magnitude of the range of motion?
ANSWER:
Yes. The history is that of a whiplash mechanism, which is a classic example of exceeding the normal range of motion of the facet joints of the cervical spine. Whiplash injury is proven to exceed the range of motion of the cervical spine facet joints, injuring the facet joint capsular ligaments. This constitutes a sprain injury.
QUESTION:
What are the clinical features of a sprain injury?
ANSWER:
QUESTION:
Can you please show me where these clinical findings are documented in your records?
ANSWER:
[Once again, you had better be able to do this, show him/her where the clinical features are documented in the records].
EXAMPLE 3, Right C7 discogenic radiculopathy:
QUESTION:
Your diagnosis includes right C7 discogenic radiculopathy. What is a C7 radiculopathy?
ANSWER:
The bones of the spine are called vertebrae. Between every two adjacent vertebrae exits two nerves, one from the right side and the other from the left side. Because these nerves are attached to the spinal cord, they are called nerve roots. Radiculopathy means that a nerve root is injured and is not functioning properly. C7 indicates that the nerve root in question is exiting from between the sixth and seventh cervical vertebrae.
QUESTION:
What does discogenic radiculopathy mean?
ANSWER:
It means that the cause of the injury and dysfunction to the C7 nerve root is the C6-C7 intervertebral disc. The C6-C7 disc is irritating or pressing upon the C7 nerve root, causing its dysfunction. The disc is causing the radiculopathy, or discogenic radiculopathy.
QUESTION:
What history is consistent with a discogenic radiculopathy?
ANSWER:
There are two classic historic mechanisms for a discogenic radiculopathy:
1) As a consequence of injury.
2) As a consequence of degenerative disease.
QUESTION:
In this case, was one of these mechanisms documented through the taking of the patient’s history?
ANSWER:
Yes. The history is that of a whiplash mechanism, which can injure the intervertebral disc, causing irritation and dysfunction of the adjacent nerve root.
QUESTION:
Could the discogenic radiculopathy in this case be as a consequence of degenerative disease?
ANSWER:
No. The initial x-rays, which were taken the day following the whiplash injury, showed no signs of pre-accident degenerative disease. In addi