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Injury, pseudoinjury, and litigation
Malpractice
Injury, Pseudoinjury, and Litigation
edical malpractice litigation in our specialty continues at a significant rate, yet far exceeding malpractice in numbers, if not in financial terms, are claims for personal injury that have become enormous, along with product liability, in the litigation explosion. My personal experience with over 1,000 such cases in addition to several hundred medical malpractice incidents confirms the presumption that much of injury related disability and prolonged symptoms are exaggerated or feigned when associated with litigation. The majority of events leading to litigation have come from motor vehicle accidents and almost onehalf of these are rear end collision, after which liability is seldom challenged. The major question is the degree of physical injury sustained. Next in frequency are slip and fall accidents, other types of injury, and industrial accidents. Although my reviews and testimony have been requested largely by attorneys representing insured defendants or self-insured corporations, a small number have also been undertaken for plaintiffs’ attorneys. Authentic and supportable injuries have accounted for about 20% of the entire group— closed head injury, skull fracture with cerebral contusion, facial and orbital fractures, spinal fracture/dislocation, some with spinal cord injury, acute and chronic subdural hematoma. Many others were thought to have moderate or severe muscular strain but with full recovery in a short time requiring minimal or no treatment and no disability. A small number had herniated discs due to injury, with a few of these requiring surgery but most having spontaneous recovery. Overwhelming numbers of people, however, many of whom were personally examined, displayed symptoms entirely out of proportion to any objective findings. Presenting with neck and back pain after minor accidents, even though most could only be due to muscular strain if in fact there was any injury at all, there was often a relentless progression to headache, extremity numbness and tin-
M
0090-3019/03/$–see front matter doi:10.1016/S0090-3019(03)00578-0
gling, diffuse body pain, dizziness, all in the absence of any physical signs. Often many consultations, X-rays, imaging procedures and numerous diagnostic studies were undertaken. Many MRIs were done, and it should be no surprise that reports of imaging at every level of the spine were frequently indicative of “bulging” or “protruding” or “herniated” discs, typically at more than one level. (The MRI record is held by one person who had 13 studies in one year!) A number of patients under the guidance of their attorneys simply magnified their symptoms, carried on with their treatments, and were disabled only for several months. But others were obviously in either a malingering or conversion group, often with extensive prior similar histories and remained permanently disabled. In many cases chiropractic treatment was carried on for a year or more (one holder of record for 4 years, 4 persons for 3 years. Close behind in numbers for long duration of treatment in physical therapy were 12 people who were treated from 1 to 4 years!) Many people had multiple courses of epidural steroid injection, acupuncture, facet and trigger point injections (the holders of record for trigger point procedures: one woman 96 times and another 80 times). Why has all this occurred? Is it the proliferation of lawyers in our country over the last quarter century with many of them in search of compensation or employment? As one plaintiff’s attorney dejectedly said to me at the conclusion of a deposition that was devastating for his client: “I am sorry Doc; it’s only to make a living!” Many physicians, of course, blame the medical legal litigation morass and the “ambulance chasers” for the uneasy state of medicine today. In fact, the cause of unscrupulous lawyers would be worthless were it not for physicians, whose reports to attorneys willingly support their patients in the presence of exaggerated or prolonged symptoms. Understandably, most physicians are supportive of their patients, yet from my observation © 2003 Elsevier Inc. All rights reserved. 360 Park Avenue South, New York, NY 10010 –1710
Injury, Pseudoinjury, and Litigation
they have frequently accepted merely the fact of an injury itself without any clear understanding of how it may have occurred and without the slightest attention to an individual’s personality or behavior. Worse are the unprincipled doctors who support their claims with dishonest reports and testimony; these include orthopedic surgeons; neurologists; physiatrists; and yes, neurological surgeons. The diagnoses of “fibromyalgia, posttraumatic stress syndrome, postconcussion syndrome, and socalled minor traumatic brain injury” (the descriptive adjective “traumatic” added to emphasize trauma, frequently in the absence of any significant head injury at all) can be equated with the junk science of chiropractors and alternative therapists claiming “subluxation complexes” and “segmental dysfunction.” Worse yet has been the inappropriate spinal surgery in 15% of this group of people, half by orthopedic surgeons and half by neurological surgeons, none of these undertaken for unequivocal disc herniation and a number done in the face of degenerative changes presumably exacerbated by soft tissue injury. Not surprisingly, every single one of these people had symptoms intensified by the surgery and reside in that large category of failed spinal surgery syndrome. Most have been referred to pain management centers and are given prescriptions for Oxycontin, Oxycodone, Neurontin, Zoloft, Baclofen and anti-inflammatory agents through the litigation process, their surgeons, of course, having certified that the problem requiring surgery was causally related to injury. An extensive literature on whiplash, posttraumatic syndromes, and compensation neurosis has in general supported the belief in the element of secondary gain from litigation. There is a contrary opinion, however, that prolonged symptoms and disability may not necessarily be related to financial pursuit and that most patients are not cured by a verdict in their favor. My own observation of large numbers of litigants, however, suggests that a verdict in their favor would certainly destroy their credibility if they allowed it. In addition, many of them have long since accepted a life of disability and dependency during the years before actual litigation or settlement. It has been possible to follow 886 cases to conclusion during an 8-year period. Of these, 681 (76%) were settled, for the most part because liability was uncontested. Among the remainder there was a defense verdict in 138 (16%), plaintiff verdict in 26 (3%), and 41 (5%) were dismissed. The settlements in many, if not most, cases have been well below the plaintiff demands. It should
Surg Neurol 479 2003;60:478 – 82
also be evident that this, as well as the significant number of defendant verdicts, represents what can be accomplished from objective review and testimony to counterbalance what some have suggested is a general decline of morality in our society with respect to professional behavior, at best unethical, at worst inappropriate. While it is true that physicians in general have a natural or inherent rancor toward the legal system, it also seems clear that there is little tort reform in sight, that the contingency fee remains unassailable, and under the present system neurosurgeons in particular would do well to maintain a greater presence in medical legal affairs of this type. The education of attorneys and jurors can be most rewarding. As irrationai as it may seem, the display of MRI films before a jury can demonstrate that the imaging of the individual in question is no different than that of most people in the courtroom! Charles A. Fager, M.D. Chairman Emeritus Department of Neurosurgery Lahey Clinic Medical Center Burlington, Massachusetts COMMENTARY
Dr. Fager is to be congratulated for sharing his vast experience in reviewing medical records involving individuals seeking compensation for claimed injuries. Three-quarters of the claimants were involved in motor vehicle accidents and 20 percent of the approximately 900 cases reviewed were felt to have evidence of objective abnormality. The other 80% had a combination of nonorganic complaints with no objective evidence of physical abnormality, yet were considered to be permanently disabled. My experiences in reviewing similar matters here in the Midwest is very consistent with the analysis provided by Dr. Fager of his reviews on the East Coast. In such matters, it is routine to see basically normal imaging findings, particularly on MRI studies, read as being abnormal because of a bulge or a tiny herniation; these findings being attributed to a particular accident since the patient had no complaints before the incident and the complaints of pain and other symptoms must be related to the bulging disc (since there are “no other visible abnormalities”). This is particularly prevalent in the Chicago area where accident victims appear to be uniquely referred to a number of freestanding MRI facilities where the radiologist reads any type of protrusion as a “herniation” even if 1 mm in size and not compressing any of the neural elements. Treatment in Chicago often begins at a chiropractic facility with referral to an in-house neurologist
Injury, Pseudoinjury, and Litigation
edical malpractice litigation in our specialty continues at a significant rate, yet far exceeding malpractice in numbers, if not in financial terms, are claims for personal injury that have become enormous, along with product liability, in the litigation explosion. My personal experience with over 1,000 such cases in addition to several hundred medical malpractice incidents confirms the presumption that much of injury related disability and prolonged symptoms are exaggerated or feigned when associated with litigation. The majority of events leading to litigation have come from motor vehicle accidents and almost onehalf of these are rear end collision, after which liability is seldom challenged. The major question is the degree of physical injury sustained. Next in frequency are slip and fall accidents, other types of injury, and industrial accidents. Although my reviews and testimony have been requested largely by attorneys representing insured defendants or self-insured corporations, a small number have also been undertaken for plaintiffs’ attorneys. Authentic and supportable injuries have accounted for about 20% of the entire group— closed head injury, skull fracture with cerebral contusion, facial and orbital fractures, spinal fracture/dislocation, some with spinal cord injury, acute and chronic subdural hematoma. Many others were thought to have moderate or severe muscular strain but with full recovery in a short time requiring minimal or no treatment and no disability. A small number had herniated discs due to injury, with a few of these requiring surgery but most having spontaneous recovery. Overwhelming numbers of people, however, many of whom were personally examined, displayed symptoms entirely out of proportion to any objective findings. Presenting with neck and back pain after minor accidents, even though most could only be due to muscular strain if in fact there was any injury at all, there was often a relentless progression to headache, extremity numbness and tin-
M
0090-3019/03/$–see front matter doi:10.1016/S0090-3019(03)00578-0
gling, diffuse body pain, dizziness, all in the absence of any physical signs. Often many consultations, X-rays, imaging procedures and numerous diagnostic studies were undertaken. Many MRIs were done, and it should be no surprise that reports of imaging at every level of the spine were frequently indicative of “bulging” or “protruding” or “herniated” discs, typically at more than one level. (The MRI record is held by one person who had 13 studies in one year!) A number of patients under the guidance of their attorneys simply magnified their symptoms, carried on with their treatments, and were disabled only for several months. But others were obviously in either a malingering or conversion group, often with extensive prior similar histories and remained permanently disabled. In many cases chiropractic treatment was carried on for a year or more (one holder of record for 4 years, 4 persons for 3 years. Close behind in numbers for long duration of treatment in physical therapy were 12 people who were treated from 1 to 4 years!) Many people had multiple courses of epidural steroid injection, acupuncture, facet and trigger point injections (the holders of record for trigger point procedures: one woman 96 times and another 80 times). Why has all this occurred? Is it the proliferation of lawyers in our country over the last quarter century with many of them in search of compensation or employment? As one plaintiff’s attorney dejectedly said to me at the conclusion of a deposition that was devastating for his client: “I am sorry Doc; it’s only to make a living!” Many physicians, of course, blame the medical legal litigation morass and the “ambulance chasers” for the uneasy state of medicine today. In fact, the cause of unscrupulous lawyers would be worthless were it not for physicians, whose reports to attorneys willingly support their patients in the presence of exaggerated or prolonged symptoms. Understandably, most physicians are supportive of their patients, yet from my observation © 2003 Elsevier Inc. All rights reserved. 360 Park Avenue South, New York, NY 10010 –1710
Injury, Pseudoinjury, and Litigation
they have frequently accepted merely the fact of an injury itself without any clear understanding of how it may have occurred and without the slightest attention to an individual’s personality or behavior. Worse are the unprincipled doctors who support their claims with dishonest reports and testimony; these include orthopedic surgeons; neurologists; physiatrists; and yes, neurological surgeons. The diagnoses of “fibromyalgia, posttraumatic stress syndrome, postconcussion syndrome, and socalled minor traumatic brain injury” (the descriptive adjective “traumatic” added to emphasize trauma, frequently in the absence of any significant head injury at all) can be equated with the junk science of chiropractors and alternative therapists claiming “subluxation complexes” and “segmental dysfunction.” Worse yet has been the inappropriate spinal surgery in 15% of this group of people, half by orthopedic surgeons and half by neurological surgeons, none of these undertaken for unequivocal disc herniation and a number done in the face of degenerative changes presumably exacerbated by soft tissue injury. Not surprisingly, every single one of these people had symptoms intensified by the surgery and reside in that large category of failed spinal surgery syndrome. Most have been referred to pain management centers and are given prescriptions for Oxycontin, Oxycodone, Neurontin, Zoloft, Baclofen and anti-inflammatory agents through the litigation process, their surgeons, of course, having certified that the problem requiring surgery was causally related to injury. An extensive literature on whiplash, posttraumatic syndromes, and compensation neurosis has in general supported the belief in the element of secondary gain from litigation. There is a contrary opinion, however, that prolonged symptoms and disability may not necessarily be related to financial pursuit and that most patients are not cured by a verdict in their favor. My own observation of large numbers of litigants, however, suggests that a verdict in their favor would certainly destroy their credibility if they allowed it. In addition, many of them have long since accepted a life of disability and dependency during the years before actual litigation or settlement. It has been possible to follow 886 cases to conclusion during an 8-year period. Of these, 681 (76%) were settled, for the most part because liability was uncontested. Among the remainder there was a defense verdict in 138 (16%), plaintiff verdict in 26 (3%), and 41 (5%) were dismissed. The settlements in many, if not most, cases have been well below the plaintiff demands. It should
Surg Neurol 479 2003;60:478 – 82
also be evident that this, as well as the significant number of defendant verdicts, represents what can be accomplished from objective review and testimony to counterbalance what some have suggested is a general decline of morality in our society with respect to professional behavior, at best unethical, at worst inappropriate. While it is true that physicians in general have a natural or inherent rancor toward the legal system, it also seems clear that there is little tort reform in sight, that the contingency fee remains unassailable, and under the present system neurosurgeons in particular would do well to maintain a greater presence in medical legal affairs of this type. The education of attorneys and jurors can be most rewarding. As irrationai as it may seem, the display of MRI films before a jury can demonstrate that the imaging of the individual in question is no different than that of most people in the courtroom! Charles A. Fager, M.D. Chairman Emeritus Department of Neurosurgery Lahey Clinic Medical Center Burlington, Massachusetts COMMENTARY
Dr. Fager is to be congratulated for sharing his vast experience in reviewing medical records involving individuals seeking compensation for claimed injuries. Three-quarters of the claimants were involved in motor vehicle accidents and 20 percent of the approximately 900 cases reviewed were felt to have evidence of objective abnormality. The other 80% had a combination of nonorganic complaints with no objective evidence of physical abnormality, yet were considered to be permanently disabled. My experiences in reviewing similar matters here in the Midwest is very consistent with the analysis provided by Dr. Fager of his reviews on the East Coast. In such matters, it is routine to see basically normal imaging findings, particularly on MRI studies, read as being abnormal because of a bulge or a tiny herniation; these findings being attributed to a particular accident since the patient had no complaints before the incident and the complaints of pain and other symptoms must be related to the bulging disc (since there are “no other visible abnormalities”). This is particularly prevalent in the Chicago area where accident victims appear to be uniquely referred to a number of freestanding MRI facilities where the radiologist reads any type of protrusion as a “herniation” even if 1 mm in size and not compressing any of the neural elements. Treatment in Chicago often begins at a chiropractic facility with referral to an in-house neurologist