First published in The Lawyers Weekly June 7, 2002, Vol. 22, No. 6
Soft-tissue injuries generate most of the billions of dollars annually paid in claims.
This applies to both benefits in lost-time Workers' Compensation claims and Quantum of Damages in motor vehicle accidents.
Personal injury litigation continues to grapple with the wide range of outcomes after comparable soft tissue injury.
One hurdle in medical expert determination and assessment of disability in these circumstances is that lawyers and physicians mean different things by common terms.
Medical definitions (World Health Organisation):
Impairment: absence or loss of a psychologic, physiologic, or anatomic structure or function.
Disability: absence or loss of ability to perform tasks in a normal manner.
Handicap: the limitations on the person’s ability to fulfill normal social roles and obligations.
A much bigger problem is that there is no way to objectively measure the principal determinants of medical disability (legal impairment).
Functional limitation - muscle strength, range of movement - can be quantified, and percentages of disability allotted by reference to standard tables.
What Causes Disability?
The factors that mainly determine failure to recover, however, are functions of the mind - pain, psychological distress, fatigue, and sleep deprivation.
These factors are difficult to measure clinically in a meaningful way.
Furthermore, the "body-mind split" continues to permeate our culture.
Many of the traditional experts - orthopedic surgeons and rheumatologists - are among the medical specialists least qualified and trained to integrate physical and mental conditions.
It is not any objective determination, but rather the individual medical experts’ differences in credulity of, and empathy for, the claimant, that largely causes the wide discrepancy in medical expert opinion about prognosis.
Claimant and defence medical experts characteristically provide prognoses at the pessimistic and optimistic ends of the range respectively.
Those predictions are based more on the physicians’ attitudes than on medical science.
Were the prognoses based on clinical judgment, such opinions would, like diagnoses, differ much less than they do.
More Appropriate Medical Experts
When healing remains incomplete three to six months following trauma to soft tissues, psychiatrists and general and family practitioners are the specialists better equipped to help counsel and the court understand the complex interactions of the injured body and mind.
In my view, psychiatric assessment should be standard, if not mandatory, in litigation arising from chronic pain after soft tissue injury. Psychiatrists are the only experts who are qualified to both diagnose psychological conditions and integrate bodily symptoms and signs.
In general, detailed expert psychiatric analysis should address DSM-IV criteria for somatoform disorder, pain disorder, depressive disorder, Post Traumatic Stress Disorder and malingering.
Moreover, if the claimant or plaintiff fulfils criteria for one of the first four conditions, it is probable s/he fulfils criteria for other psychological conditions, and one diagnosis is usually insufficient.
Expect to recover?
Henry Ford said, "Whether you think you can, or you think you can't, you are probably right."
Canadian researchers recently published the first paper that quantifies the effect of patient expectations on recovery time. Positive expectations about 1) current progress, 2) future improvement and 3) time until return to usual activities, were each associated with a 25-37% faster return to work.
This correlation was independent of other recognised prognostic factors and appears to be a true cause-and-effect relationship.
Beliefs about injury and illness are necessary for us to make sense of what is happening to us, form judgments about the effects on our health and determine what action is necessary during recovery.
These beliefs can usefully be grouped into 5 main cognitive areas:
Name and component symptoms
Anticipated effects and outcome
Cure or control
This can form a practical template for claimant counsel during intake interview, and for defence counsel during Examination for Discovery.
The purpose of the questionnaire is not to "correct" the client’s beliefs, according to the litigator’s understanding or according to conventional medical "truth", but to gain insight into the widely-varying outcomes of similar injuries in different clients.
The claimant’s beliefs should simply be fleshed out and recorded.
Name and component symptoms: the term the client uses to identify his/her condition can be illuminating and may or may not be medically correct. Similarly, the component symptoms that the client attributes may not all be causally related.
Cause: the client’s beliefs about the pathological causation of the condition or symptoms can differ markedly from conventional medical tenets.
Expected duration may be very different for patient and caregiver. The client’s beliefs about time to recover tend to be a self-fulfilling prophecy.
Anticipated effects and outcome are particularly useful for counsel to explore.
Cure or control: will the patient recover, and does s/he believe s/he can influence the outcome by what s/he does?
Changing the Prognosis
The Court can adopt the Defence view of what "should" happen to a motivated victim in these circumstances, or accept the Claimant’s view that nothing will change.
Striking some sort of compromise between the two is another option.
However, the two overlapping determinants of Disability - suffering and beliefs - exist only in the mind of the disabled.
The experience of pain, psychological distress, fatigue, and sleep deprivation is intangible and cannot be objectively quantified. Medical science has few solutions to these age-old problems.
Are the client’s beliefs about the injury susceptible to change? Despite the immense financial burden that results from disability after soft tissue injury, clinical research has only just started to grapple with this question - and there are no preliminary answers yet.
In our very limited state of knowledge, the real prognosis is what the claimant believes it is.
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