Obtaining better outcomes in medical litigation – Lesson 1
Different cause, studies show, not testing, normal range of motion, soft tissue, no spasm, predated injury, malingering, defective neurological testing, unrelated to accident
Excerpted from Exposing Deceptive Defense Doctors by Dorothy Sims
With many defense doctors, you may see one or more of the following:
§15:10 Claiming Exam Reflects Positive Signs of Condition, But Condition Is Not Cause of Plaintiff’s Symptoms
The DME may do a decent exam that reflects positive signs of the plaintiff’s condition, but then claim the condition is not the cause of the plaintiff’s symptoms. Instead, the doctor will cite ten other potential conditions. For example, instead of traumatic brain injury, he may conclude your 87-year-old widowed plaintiff may have spontaneously developed syphilis, which caused the abnormal findings. The Law of Parsimony (see Chapter 11, §11:52) demands the doctor turn to the simplest explanation first. The defense doctor, however, will claim that the symptoms, all of which can be explained by TBI, are really caused by 10 different conditions, all of which just happened to manifest themselves after an accident that can cause TBI.
§15:11 Claiming “Studies Show . . . .”
Demand the name of the study. Bring your laptop with an aircard to the deposition and offer to pull the study off the National Institutes of Health Database. See generally Chapter 27, Technology, Outsourcing and Cross-Examination, §27:35.
§15:12 Not Testing for Particular Condition; Ignoring Positive Signs of Condition
Another potential defense tactic is not to test for a particular condition or to ignore positive signs for the condition, even if the exam was videotaped. Consider asking the DME:
Q: Doctor, you could have tested for this condition, correct?
Q: The carrier would have paid for your time, correct?
Q: You make more per hour doing forensic work than treating Medicare patients, don’t you?
Q: Isn’t it true that the real reason you did not perform this test or suggest that someone else do it was that you were afraid it would come back “abnormal,” thus supporting the plaintiff’s case?
Q: You would order the test if my client were your own patient, wouldn’t you?
Q: If this were your mother, you’d order the test, wouldn’t you?
§15:13 Claiming “Normal Rangeof Motion,” Without Properly Measuring Range of Motion
The DME may claim your client’s range of motion was “normal,” even though he did not measure range of motion with any device (an inclinometer or goniometer). Consider the following questions for the DME:
Q: Doctor, are you aware of any impairment guide more commonly used by members of your profession for the purposes of determining impairment, than the American Medical Association Guides to the Evaluation of Permanent Impairment?5
If the DME did not measure range of motion at all, ask:
Q: Doctor, I notice that you did not measure my client’s range of motion, is that correct?
Q: How much did you get paid for this examination, doctor?
Q: Doctor, doesn’t the AMA Guides require 3 range of motion studies be documented on eachplane within 5 degrees of each other?6
Q: But you didn’t do that, did you?
Q: You did not document or measure any of the ranges of motion on any plane (forward, flexion, extension, rotation, etc.), did you?
If the DME measured range of motion, but did not use a proper measuring device, ask:
Q: Doctor, tell me, did you perform warm-up movements? [Warm up movements will improve the range of motion, and there would be a lessening of any impairment.7]
Q: Can you even tell me what they are?
Q: What tool did you use to measure range of motion? [The DME will say he did it by simple observation.]
Q: What? No tool?
Q: You did not purchase an inclinometer and use it, per the AMA Guides instructions?
Q: The AMA Guides instruct, on page 400, that “…an inclinometer is the preferred device for obtaining accurate, reproducible measurements in a simple, practical and inexpensive way.” Isn’t that right?
Q: You want to be accurate, right?
Q: You want to be practical, right?
Q: You don’t mind using a device if it is inexpensive, right?
Q: How much did you charge, again, for your examination?
Q: Doctor you did not actually measure my client’s range of motion at all, did you?
Q: You did not document how far he can bend forward or backward. You did not measure it; you simply eyeballed it. Isn’t that right?
Q: Again, doctor, how much were you paid for this evaluation?
Q: Doctor, isn’t it true that it would have taken only a couple of minutes to document how many degrees forwards, backwards, and to the sides this man could bend?
Q: And, in fact, it would give us more specific information?
Q: Doctor, you did not measure my client’s grip strength either, did you?
Q: You did not use a hand dynamometer to see how many pounds-per-square-inch this man could squeeze?
Q: You just had him squeeze your hand, right?
Q: Doctor, can you even tell me what the normal grip strength should be on the dominant hand for a man of my client’s age and body habitus?
Q: So, you are claiming my client has normal grip strength, but you cannot even tell me what normal grip strength is?
See §15:40, Physical Examination of Plaintiff for additional related questions.
§15:14 Claiming Plaintiff’s Condition Is Just a “Soft Tissue” Injury
If the DME claims your client’s injury is nothing more than a “soft tissue” injury, ask:
Q: Doctor, a soft tissue injury can be devastating, can’t it? [He will probably deny this.]
Q: Doctor, a tumor is “soft tissue,” isn’t it?
Q: Can we agree that a stage-4 cancerous tumor can be devastating?
§15:15 Claiming Plaintiff Had “No Spasms,” But Not Gowning Plaintiff
A spasm is defined as “a nocifensive reflex for the protection of the diseased parts against injurious motion,” which can actually “distort normal posture.”8 A doctor should exert enough pressure when palpating for spasms that the doctor’s fingertips blanch when he pushes down on the patient’s body. If they do not, he’s not pressing hard enough and may not feel a spasm, even if one is there. DMEs who rely on this defense will “palpate” the patient over three layers of clothing, rather than having the patient undress and put on a gown. Look for this especially in winter months or cold climates. Clearly the doctor was not really trying to feel for muscle spasms if he placed his hands over a bulky winter sweater to palpate the patient’s back.
Q: Please define a “spasm.”
Q: You can actually feel it, similar to a lump, right?
Q: How much pressure must you exert in order to actually appreciate a spasm?
Q: If a woman is checking her breast for a lump and just lays her hand over her breast, she’s likely to miss a lump, right?
Q: The same is true with you too, right? If you don’t push hard enough, you won’t even find the spasm, right?
Q: Did you document where you actually palpated for spasms?
Q: What was my client wearing when you palpated [her back] for spasms?
§15:16 Claiming Condition Predated Injury, But Was Asymptomatic
What are the odds that this condition would just happen to become symptomatic immediately after an injury that everyone agrees could cause the condition in the first place? Ask the DME to be specific:
Q: Doctor, can we agree that at least for a few months after the accident, the increase in my client’s symptoms was probably due to the injury?
Q: So, doctor, can you tell me precisely when – what year, month, day, hour and minute— my client’s worsening symptoms stopped being due to the crash in question and then became due to some pre-existing condition?
§15:17 Claiming Malingering, But Ignoring Tests Administered by Your Psychologists
The DME may claim your client is malingering or exaggerating, while conveniently ignoring the fact that your client passed all the standardized malingering tests administered by your psychologists. Ask the DME:
Q: Doctor, you gave no tests designed to determine malingering, did you?
Q: Were you aware that my client’s treating doctors did?
Q: Were you aware my client passed them all?
Q: So you concluded that my client was malingering by failing to administer any tests for malingering and ignoring the malingering tests that he actually passed, correct?
Q: Doctor, can we agree that in medical school you received no formal training whatsoever in testing or measurements?
Q: Can we also agree that you have no formal training whatsoever on the administration and interpretation of the psychological testing in this case?
Q: Isn’t it true that, with regard to your own patients, you refer them out if they need neuropsychological or psychological testing?
Q: You would agree, then, that you are not expert on the administration and interpretation of the actual malingering tests that were administered and passed by my client?
Q: If you are not an expert in these particular tests, don’t you think it would be appropriate to learn about them before you reject them out of hand?
The DME now may claim the malingering tests your client passed are insignificant. Press him:
Q: Doctor, if you, admittedly, do not know how to administer or score these tests, isn’t your claim that they are “insignificant” just like saying, “Well, I’m not an expert on mammography, so I’m just going to say this suspicious mammogram is insignificant.”
If the DME is a neurologist, he violates his own code of ethics when he ignores this data.9 Plus, the neurologist’s own practice protocol requires him to consider neuropsychological testing.10 Ask:
Q: Doctor, show me where your code of ethics suggests that a doctor ignore test results because he doesn’t understand them?
Q: Doctor, if you don’t understand how to administer, score, or interpret the neuropsychological tests, can we agree you are not in a position to determine whether the test results are relevant or irrelevant in this case?
§15:18 Deferring Only to Other Defense Doctors
Another common DME tactic is to defer only to doctors who have spent the least amount of time with the patient and have a dog in the fight, i.e., other defense doctors.
Q: Doctor, do you know the specifics of the training of all the doctors involved in this case, such that you can explain, with specificity, which doctors are more capable of being believed than others?
Q: So it would be inappropriate to weigh more heavily the opinions of the DMEs, right?
Q: Isn’t that exactly what you did when you used 3 times as many words to reference the findings of the DMEs as opposed to all the treaters?
§15:19 Claiming Prior Neurological Testing Is Defective
Q: Doctor, you claim the prior neurological testing done on my client was somehow defective, correct?
Q: Doctor, you do this kind of testing, don’t you?
Q: Yet, even though you do this kind of testing, you never recommended my client be retested, despite your claim that the original electrodiagnostic studies were incorrect, right?
Q: You never called the doctor who performed the studies to advise him of his mistake, did you?
Q: You would have ordered another study had this been one of your actual patients, wouldn’t you?
Q: Doctor, doesn’t my client deserve the same consideration as your patients?
Q: Isn’t it true that you didn’t order another study because you were afraid the second study would come back just as abnormal as the first?
§15:20 Claiming Condition Not Related to Accident
If the doctor says your client’s condition is not related to the accident, ask the doctor to admit the accident could cause trauma (but it just didn’t, in this case). Ask these questions to gain concessions early on in the deposition, before the doctor becomes defensive.
Q: Doctor, could this condition exist in anyone? [Of course, it could.]
Q: Okay. My client is 52 years old. That means she has a 1 in 18,980 chance [365 days x 52 years] of developing this condition/symptom on any one day, and it just so happened she developed it on the very day she had an accident that can cause these symptoms?
Q: But, despite these odds, it is your claim that the accident did not cause these symptoms?
Q: These symptoms just happened to coincide with the accident, is that right?
Q: Doctor, please tell me the name of the last case in which testimony exists in which you actually agreed with the plaintiff’s treating doctor on causation and the severity of the disability.
Q: How many defense medical examinations have you conducted?
Q: So, doctor, you have conducted [e.g., approximately 2,000] defense medical exams over your lifetime?
Q: By the time the defense sends these patients to you, usually one to three doctors have opined the condition exists and was related to the accident, and have rendered an opinion on the severity of the condition, right?
Q: So, if we take 2,000 defense medical exams and multiply that by one-to-three doctors, that means you have disagreed with 2,000 to 6,000 doctors. Did you ever think you might be the one who is mistaken?
The above advice came from…
Why do so many defense doctors lie?
At a conference for medical experts the audience was asked, “How many times can you reach a conclusion contrary to insurance interests and still be hired by the carriers?” The audience response was nearly unanimous: “Twice.”
A DME can be candid two times. After a third contrary assessment, the doctor can forget those big-fee referrals.
How to reveal the deceit
Use the techniques for overcoming common defenses, the pattern questions, secondary resources, and sophisticated tactics detailed in Dorothy Clay Sims’ Exposing Deceptive Defense Doctors. Her strategies have proven effective in hundreds of depositions and trials in challenging the DME on:
Incomplete and biased defense medical exams. Chapter 2
Negative results on psychological tests. Chapter 5
Junk psychological defenses. Chapter 6
Claims of malingering and exaggeration. Chapter 7
Ignoring symptoms of depression. Chapter 8
Failure to test or investigate for post-traumatic stress disorder. Chapter 9
Poor results on neurological or radiological tests. Chapters 15 and 16
Denying causation in neck and back injuries. Chapter 17
Minimizing pain. Chapter 18
Overlooking complex regional pain syndrome. Chapter 19
Contradictory functional capacities evaluations. Chapter 20
Unfavorable long-term disability medical record. Chapter 21